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Present: Garvin and Lyall Grant JJ.
MUHEETH ABDUL WAREEK et al.
211—D. C. (Inty.) Colombo, 1,338.
Last will—Property specifically devised—Subsequent gift—Revocation.
Where property, which formed the subject of a specific devise undera will, was subsequently disposed of by the testator duringhis life time by deed of gift,—
Held, that such disposition operated as a revocation pro tantoof the devise.
PPEAL from an order of the District Judge of Colombo.
Hayleyt K.C. (with H. if. Bartholomeusz and if. V. Perera), forappellant.
Koch (with Keuneman), for respondents.
February 14, 1928. Garvin J.—
By his last will dated November 27, 1912, M. M. H. Cassim LebbeMarikar made several specific devises of immovable property to hiseldest son, the appellant, and others; he set apart certain premisesto be sold and the proceeds applied in payment of his debts, andprovided that the rents and profits arising out of the immovableproperty specially devised should be recovered by his executor andapplied in the payment of taxes and the maintenance of thepremises, and the surplus in the discharge of mortgages created overthe immovable property.
M.M. H. Cassim Lebbe Marikar did not die for about eleven yearsafter he made this last will. In the interval he acquired otherproperty and divested himself of title to some of the propertyof which he was the owner at the time when he made this will. Hemade various gifts by deed to the executor and others, and in sodoing followed for the most part the dispositions made in this will.But there are instances in which he departed from the distributionin his will and transferred property specifically devised to oneperson to another.
Some years have elapsed since this will was.admitted to probate,and there are indications on this record that the heirs are dis-satisfied with the executors’ administration of this estate.Mortgages have not been discharged with the result that they have
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been put in suit and decrees obtained. Certain of the premisesspecifically devised are in immediate peril of being taken inexecution.
The District Judge ordered the executor to give a full accountand then directed that this account should be judicially settled.
This account proceeds upon the assumption that the estate of thedeceased included all the immovable property which formed the sub-ject of the various deeds of gift earlier referred to. It wassought to impeach these gifts, but the learned District Judge hasheld that they were valid and operative. This decision has notbeen challenged.
It was then submitted that by reason of the doctrine of electionthose persons who, being devised under the will, have receivedunder a deed of gift property which by the will, had been specificallydevised to some other person, must surrender the property so gifted,if they desire to take benefit under the will. This contention wasrejected by the Judge. The point was somewhat faintly urged inappeal, and the reason for this is manifestly that the executor,who has obtained property of the value of Bs. 60,000 by gift, willgain nothing by any re-adjustment on this basis.
This is merely a case in which a person during his life time makesa will and later disposes of property which formed the subject of adevise.
There is every indication that the testator later in his life timeand possibly in view of acquisition of property made since his lastwill decided to make an immediate distribution of some of hisproperty. When he departed from the scheme of distribution inhis will he presumably did so deliberately. Under the circum-stances I agree with the District Judge that where by a deed of giftproperty which formed part of a specific devise has been disposed ofby the testator during his life time the disposition operates as arevocation pro tanto of the devise.
The property, which formed the subject of the several deeds ofgift, clearly formed no part of the estate of the deceased at his death,and the accounts of the executor must be rendered on this basis.
Thus far I am in agreement with the learned District Judge, andit only remains to consider the submission that the Judge's orderthat the immovable property which forms part of the residuedevised to the executor should be sold for the payment of debtscannot be sustained. No authority was cited for the propositionthat the Court had power by such an order to compel the executor tosell a particular parcel of immovable property and not another.I doubt whether such a power exists. But there is a further objec-tion to this order. This is a proceeding for the judicial settlement
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of the executor's accounts, and I am unable to see that an ordersuch as this can appropriately be made in such a proceeding andparticularly at this stage of the proceeding.
Should the immovable property specifically devised, upon whichthese mortgages were charged, be taken in execution, by reason ofthe failure of the executor to discharge them, those devisees willno doubt take such legal remedies, if any, which may in fehdcircumstances of the case be available.
The direction to the executor to sell the immovable propertywhich forms part of the residue is set aside, but in other respectsthe order of the District Judge will stand affirmed.
There will be no order as to the costs of appeal.
Lyall Grant J.—I agree.