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Present: The Hon. F. C. Moncreiff, Acting Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.
NAGAMMA v. SATHAPPA CHETTY et al.
D. C., Colombo, 13,004.
Last will—Instituted heir—Exclusion of part of the property from, thewill—Inheritance ab intestato—Roman Law—Roman-Dutch Law.
According to the Boman-Dntcb Law, if a testator excludespart of his property from the operation of the will, such propertydescends to his heirs ab intestate, and not to the instituted heirs.
rjlHE facts and arguments sufficiently appear from the judgments.
Walter Pereira (H. Jayewardene and H. J. C. Pereira with him)for the appellant (plaintiff).
Sam-payo, for the respondents (defendants). .
Cur. adv. vult.
6th May, 1903. Monoreiff, A.C.J.—
Nagamma and her husband Kaleappa Chetty Sarawana Che tty,who were, married in community of property, executed a- jointlast will which is dated 2nd July, 1862. The testator died inNovember 1867, and the will was proved in March, 1868. Theexecutors appointed by the will were Kaleappa Chetty Sarawana Chettyand Kaleappa Chetty Mutu Carpen Chetty, who are both dead.
The material part of the will deals with four events: —
The event of Nagamma’8 surviving her husband. The disposingparties will and devise that “ if the said Kaleappa Chetty SarawanaChetty should die first leaving the said Nagamma him surviving,she shall be entitled, as an annuity during her natural life, for main-tenance, to all the rents, income, and produce of the lands, houses,and gardens which belong to the said Kaleappa Chetty SarawanaChetty and are situated at New Bazaar, within the gravets ofColombo, but not from any other lands, houses, Gr gardens; andshe shall be entitled to retain in her possession all the jewels, fur-niture, and apparels which she now uses, and live and occupy halfpart of the house and premises in which we now live and reside forand during her natural life.”
The event of Sarawana Chetty’s surviving Nagamma. In thatcase Sarawana Chetty was to be the “ sole and universal heir of alland singular the movable and immovable properties left behind.”
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The‘event of Sarawana Ohetty’s leaving issue. If the testatorshould “ procreate any child or children by the said Nagamma orby another marriage according to our customs, rights, and manners,then shall such child or children be the sole and universal heirs orheiresses to our estate.”
The event of both spouses dying voithout issue. “ In the event ofus both dying without issue, all our properties shall go to the chil-dren of Kaleappa Chetty Muttu Carpen Chetty as our lawful heirs.”
The decision of this case turns on the construction of the last-mentioned provision. Nagamma is the plaintiff and seeks torecover a just half of the rents and profits of the premises whichunder the will would pass to the children of Muttu Carpen Chetty“ as our lawful heirs,” in the event of "our both dying withoutany issue ; ” also Bs. 35 per mensem until the recovery of half of thepremises. The six defendants are children of Muttu Carpen Chettyor their representatives.
From the general sense of the will I think that the spouses intendedto refer to the death of Nagamma without issue by the testator.She is still alive, but without issue; the testator died without issue.
The will provided for the event of the death of both spouseswithout issue. It made no provision as to the disposal of the rentsin question between the death of Sarawana Chetty and the death ofhis surviving spouse, but it provides, that if -Nagamma survivedher husband she was to have as an annuity for her maintenancethe income of property at New Bazaar, " but not from any otherlands, houses or gardens.” It is agreed that the question iswhether she is entitled to one half of the rents and profits of tbepremises specified in the plaint.
In my opinion the property in dispute was not disposed of by thejoint will of the spouses, and its destination must be determinedaccording to the principles which apply to such cases of partialintestacy without regard to the restriction of the widowJs annuityto the rents and profits of the property at New Bazaar. I thinkwe are to assume,. if we can, that the omission -in this carefullydrawn will to deal with the rents and profits of the premises in ques-tion was intended by the disposing spouses; and, if so, that Nagammain joining in the omission cannot have intended to part with theshare to which she was entitled by law.
The general rule according to English law is that dispositions ofa will which exclude the next of kin or heir-at-law from sharing inthe property disposed of are to be regarded as having been madeonly with reference to the property dealt with by the will, and notas affecting the right of the next of kin or the heir-at-law to their
May 6 .
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share of the property which is not disposed of. According toVan Leeuwen the principle stated in Voet (lib. 28, tit. 1, n. 1) thatit was not according to law’ unumquemque qui testandi jus ha betetiam pro parte testatum et pro parte intestatum mori posse was neveradopted in the Roman-Dutch Law. In that law it appears to bethe rule that if a testator excludes part of his property from theoperation of his will, it descends as ob iritestato, and not to the insti-tuted heirs.
I am therefore of opinion that this appeal should be allowed andjudgment entered for the plaintiff in terms prayed for.
The information furnished us by the parties at our request afterthe case was argued explains the preference which the will in questionexhibits for the husband over the wife. It seems that the wifebrought only a dowry of Rs. 1,000, and that all the lands formingthe estate were purchased from time to time by the husband betweenthe years 1844 to 1866. This fact accounts for the seemingly smallprovision made for the wife in case of her surviving the husband.An additional reason is that the spouses had practically lost allhope of having issue of their marriage. As there was no reason forconferring any great benefit on the wife, so there was no reason forregarding any. issue she might have by a subsequent marriage.Where issue by a later marriage is mentioned, it is only in the caseof the husband. Clause 2 entirely disposes of the wife and herclaims, and clause 8 is concerned with the husband alone. Itherefore read the contingency “ in the event of us both dyingwithout any issue ” as meaning “ in the event of the husbandleaving no issue.”
Nothing is said as to the disposal of the rents and profits of thelands after than those in New Bazaar during the surviving widow’slifetime, and I think we must regard the husband as having diedintestate in respect of his moiety of them. As to the widow’smoiety, it is equally undisposed of. Had it been expressly dealtwith by the will, she might now be unable to gainsay that disposi-tion, as she has taken benefit under the will in the shape of the rentsand profits of the New Bazaar property. As matters stand I thinkshe is entitled to claim that moiety as she does in this action.
The District Court decree should be reversed and judgmententered in plaintiff’s favour for a sum computed at the rate ofRs. 860 per annum (as agreed at the trial) from ist February, 1898,to 30th April, 1903, and for a further sum at the rate from the latterdate until possession is given to plaintiff with costs in both Courts.
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By their joint will dated 2nd July, 1862, Kaleappa Chetty
Sarawana Chetty and Nagamma, husband and wife, married incommunity of property, jointly willed and devised that if the said“ Kaleappa Chetty Sarawana Chetty should die first leaving the saidNagamma him surviving she shall be entitled, as an annuity duringher natural life for maintenance, to all the rents, income, and pro-duce- of the lands, houses, and gardens whioh belong both to thesaid Kaleappa Chetty Sarawana Chetty and are situated at NewBazaar within the gravets of Colombo, but not from any other
lands, houses, or gardens ”that “ if the said Kaleappa Chetty
Sarawana Chetty should survive the said Nagamma, he shall bethe sole and universal heir of all and singular the movable and im-movable properties left behind, but if the stud Kaleappa ChettySarawana Chetty should procreate any child or children either bythe said Nagamma or by another marriage according to our customs,rites, and manners, then such child or children shall be the sole anduniversal heirs or heiresses to our estate. That in the event ofus both dying without any issue all our properties shall go tothe childrenof Kaleappa Chetty MuttuCarpenChetty as our'
lawful heirs,butunder any circumstances afterour death our
said heirs or issues or their heirs or issues shall not sell ormortgage or alienate any of the lands or immovable propertiesbelonging toourestate, but they shallbe heldand possessed
by ten generations under the said restrictions and in the form offidei commis&um.”
The testators appointed Kaleappa Chetty Sarawana Chetty and’.
Kaleappa Chetty Muttu Carpen Chetty as executors. The questionin this action was whether the plaintiff, who is the surviving spouseNagamma, was entitled to one half the rents and profits of thepremises described in the plaint, and which are admittedly not'described intheannuity clause in thewill. Kaleappa Chetty
Sarawana Chetty died in November, 1867, without revoking the willand without issue by the plaintiff or any other marriage. The will,was proved and probate granted to Kaleappa Chetty Muttu CarpenChetty, the executor named therein, in March, 1868.
Kaleappa Chetty Muttu Carpen Chetty died leaving his fourchildren, the first, third, and Bixth defendants, • and one Werethal,since deceased. The fourth defendant is her husband and the fifthdefendant is her only son. The second defendant is the husbandof the first defendant.
The first question is when the devise in favour of the children of.
Muttu Carpen Chetty takes effect.
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The will is a joint one, which according to Roman-Ijutch Lawis considered as two separate wills. The plaintiff could therefore,by repudiating her benefit under it, alter the will as regards herhalf (Van Leeuwen, vol. 1, p. 318), as a will does not take effect tillthe death of the testator. I should hold that any benefit accruingunder the will to the defendants would not vest until the death ofthe plaintiff. If this be so, the will only disposes of the rents andprofits touched by the annuity clause for the present giving allproperty on death of both testators without issue to the defendants.
There is, therefore, no disposal by the will of the rents andprofits of the other immovable property pending the lifetime of theplaintiff.
The will, however, excludes plaintiff’s participation in the rentsand profits of any other property than that mentioned in the annuityclause.
Are the words of exclusion sufficiently wide to oust any claim ofthe plaintiff to share ab intestato?
According to Theobald on Wills, p. 648, in English law, directionsexcluding the' heirs-in-law or next of kin from any share in thetestator’s property, will, as a general rule, be taken to have insertedonly for the purpose of the disposition made by the will and willnot exclude the heir-at-law or next-of-kin from taking propertyundisposed of.
By Roman-Dutch Law the rule of Human Law, Nemo paganuspro parte testatus pro parte intestatus decedere potest has been abo-lished, so that portion to which no heir has been appointed do notaccrue to the instituted heir, but remain and devolve ab intestatoupon those who are nearest in blood to the testator (Van Leeuwen,translated by Eotze, uoI. 1, pp. 316, 345, 365).
Taking into consideration these principles, I think that the wordsof exclusion used in the will should be construed- as meaning thatthe intention of the testator was that so much and no more wasdisposed of under the will.
I think therefore that the plaintiff is entitled to succeed in thisaction on the footing that there has been an intestacy as regardsthe rent and profits of half share which she claims, and that thejudgment of the District Judge should be set aside and judgmententered for the plaintiff in terms of the 11th paragraph of the plaint,with costs here and in the Court below.
NAGAMMA v. SATHAPPA CHETTY et al