087-NLR-NLR-V-14-NUGARA-et-al-v.-GONASAL.pdf
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Present: Wood Renton J. and Grenier J.J,dy l' 1011NUGARA et al. v. GONSAL.173—D. C. Colombo, 31,408.
Fidei commissum—-Devise to son, 11 his heirs, executors, and adminis•to'ators ”—Prohibition against alienation.
A last will contained the following clauses:—
Clause 4.—“ It is my will and desire that the house and ground
shall be inherited by my youngest son, A. Bartholomeusz,
his heirs, executors, and administrators; and that my said sonshould pay Fncho, one of my servants, the sum. of 10 shillings permonth during his lifetime out of the rent of the said house.”
Clause “ It is my will and desire that my said six childrennor any of them shall he at liberty at any time during their lifetimeto mortgage, sell, or otherwise encumber the said property left tothem under this my will.”
Held, tliat the will created no fidei commissum in favour of thechildren of Andrew Bartholomeusz,
T
HE facts are fully stated in the judgment of the .ActingAdditional District Judge (E. W. Jayewardene, Esq.) :—
This is an action rei vindication The plaintiffs allege that one AnnaSilva, by her last will dated September 12, 1861, bequeathed her son,
A. B. Nugara, the house No. 98, Maliban street, subject to a fideicommissum. The executor of Anna Silva, by deed No. 9 dated February26,1870, conveyed the premises to A. B. Nugara, who died on September19, 1900, leaving four sons {the plaintiffs) and one daughter. Theplaintiffs claim an undivided four-fifths. The defendant pleads that- .the last will of Anna Silva did not create a fidei commission; thatNugara mortgaged the property m dispute, and oh' a writ of executionit was sold in D. C. Colombo, No. 93,983, and bought by one LouisGonsal, and Fiscal’s transfer dated November 19, 1885, was issued to-him. Louis Gonsal died in 1885, leaving hk widow, the defendant, ahdsix children. The question at issue is whether the lost Will of AnnaSilva(Nugara) dated September 12, 1861, created a fidei commissum in favourof the issue of A. B. Nugara.
'The 4th clause of the will provides that the property “shall beinherited by my youngest son Andrew Bartholomeusz (Nugara), hisheirs, executors, and administrators ; and that my said son should payFacho, one of my servants, the sum of 10 shillings per month duringhis lifetime out of the rent of the said house.”
The 8th clause of the will provides : “ It is my will and desire that,my said six children nor any of them shall be at liberty at any rtim^ *■during their lifetime to mortgage, sell, or otherwise encumber the saidproperty left to them under this my will.”
Voet has stated the rule to be generally that- the presumption is thatfidei conmissnm has been tacitly constituted in accordance with what
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July 4, 1911 seems to have been the testator’s desire, whenever suoh presumption-noce8sary inference from the terms employed. (Voet 36, 1, 10,
QonsalMcGregor*e translation.)
In Santiagu Pillai v. ChinnappUlai1 the provision that the land “shallbe possessed and enjoyed only by A, her children and their children inperpetuity, but shall not be sold,” &c., was held to create a valid fideicommissum. In Paterson v. Siloa8 the will directed that the childrenshould not sell or mortgage the property, but should possess and leavothe property to their heirs. Clarence J. had no doubt as to the testator’sintention, and held that the word “ heirs ” meant those personswho would be entitled to inherit the property under the intestacy.In Ibanu Agen v. Abeyesekera5 Wendt J. held that the intention of thetestator is of paramount importance, and that where the intention tosubstitute another (orfidei commissary) for the first-named (or fiduciary)is expressed, or is to be gathered by necessary implication from thelanguage of the will, a fidei commissum is constituted. Wendt J.seemed to agree with the dissenting judgment of Dias J. in Tina v.Sadris,4 where Dias J. said : “ The deed in favour of Andris is a deed ofgift to Andris and his heirs, with a prohibition against alienation. Itcreated a valid fidei commissum, which is good for four generations.” InPaterson v. Silva3 Clarence J. was not inclined to follow Tina v. Sadris.4In the present case it is clear that A. B. Nugara was not to take thisproperty absolutely. During his lifetime he had to pay 10 shillingsa month to the servant Facho “ out of the rent of the said house.”The testator could not have contemplated a sale of the house by A. B.Nugara ; and by clause 8 he is expressly prohibited from mortgaging,selling,, or otherwise encumbering the property. The question arises,Who are the persons intended to be benefited, and are they sufficientlydesignated ? Clause 4 provides that this property is to be inherited by“ A. B. Nugara, his heirs, executors, and administrators.” I think thatthe word “ heirssufficiently indicated the class intended to be benefited.The term would originally mean those who would inherit under anintestacy. In Ceylon the word “ heirs ” is often used to mean children.The words “ executors and administrators ” are often thoughtlesslyused, and in this case the words ” heirs, executors, and administrators ”mean no more than the one word “ heirs.” In Paterson v. SilvaClarence J. commented on the risk run by testators by needlessly usingtechnical terms not fully understood by them. Fidei commissa arearrangements by which a person seeks to control the destination ofproperty after it has passed out of his possession, usually with theobject of retaining it in his family. (Morice's English and Roman-DutchLaw, p. 306, 1st ed.)
It seems clear to my mind that the testatrix intended that thisproperty should be possessed by A. B. Nugara, and after him by hischildren, without alienation or encumbrance. I would hold that thewill created a valid fidei commissum. The plaintiffs are entitled tomesne profits for three years. Let judgment be entered for the plaintiffsas prayed for, with mesne profits at the rate of Rs. 50 a month (for threevears).from September 13, 1907, till the plaintiffs are restored to posses-sion, and costs of sitit.
'(1889) 9 S. C. 0. 33.2(1889) 9 5. C. C, 33,
"(J993) 6 *V. L. R. 344.
*(1883) 7 8, G, C♦ 136,
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The defendant appealed.July 4, ion
Bawa, for die appellantMugara o.
Gonad
Van Langenberg (with him A. St. V. Jayewardene), for therespondents.
Cur. adv. vult.
July 4,1911. Wood Renton J.—
The material facts have been fully stated by my brother Grenier,and I propose merely to say a few words as to the authorities. Thecase of Tina v. Sadris1 is a decision of three Judges, the Full Benchas it was then constituted. It is quite true, as Mr. van Langenbergpointed out in his argument in support of the judgment underappeal, that not only did Dias J. dissent in that case from the Viewof his colleagues Fleming A.C.J. and Lawrie j., but that whileFleming A.C.J. decided the case on one ground, which is entirely infavour of the present appellant, namely, that the use of the words“ heirs and administrators ” made it impossible to say that it wasthe clear intention of the donor to constitute a fidei commissum,
Lawrie J. decided it on another, namely, that a deed in favour ofA and his heirs, without specifying who is to take the property bnthe death of the first grantee, creates no fidei commissum, and thatthe case is not altered by the addition of a clause prohibiting tiiegrantee and his heirs from selling and mortgaging. But Lawrie J.said nothing to indicate that he differed from the view of FlemingA.C.J., or that he thought that the addition of the words “ executorsand administrators ” would have put the case for the heirs onstronger ground. In one or two later decisions, for example, Ibami.
Agen v. Abeysekera,1 the suggestion has been thrown out that theinterpretation of the particular deed with which the Court had todeal in Tim v. Sadris would not be accepted now. There is ^noexpress decision to that effect, and although in such cases as- JiysaUmma v. NoordeerP the word “ assigns ” is coupled with “executors^and administrators,” there is nothing to suggest that, even if theword “ assigns ” had not been there, the Court, would have Beeft'prepared to strike out “executors and administrators ” as surplusage,and in Hormusjee v. Cassim,i Bonser C.J. expressly said that theargument of the appellant’s counsel that the words “ heirs, executors,administrators, and assigns ” in a deed of gift were merely words of-description or designation of the person in whose favour the conditionwas provided, could not be sustained. I do not think that we haveany right, although in such cases as these the soundness of theargument in favour of a fidei commissum is tested by the words“ assigns,” to assume that the words “ executors and adminis-,trators” were not also to .be taken account of. In . the case of
1 (1885) 7 S. C. C. 135.3 (1902) 6 X. L. R. 113 and in review –
* (1903) 6 N. L. R. 344.(1905) 8 N. L. R. 350.
4 (1896) 2 iV, L. R. 190,
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July 4, 1911 Paterson v. Silva1 Clarence J. said that if the question presented byVooi> Tina v. Sadris should arise again, he would be prepared to considerKknton .t. it anew. Clarence J. was not, however, a party to the decision inNvgarav. Tina v. Sadris, and the observation just referred to was purelyOonmi obiter dictum. The decision in Tina v. Sadris, although pronouncedin 1885, has never been directly dissented from. There can belittle doubt but that it must have been followed by the professionin advising upon cases like the one before us. Under these circum-stances, I do not think that we ought to depart from it now. I amnot prepared to say that the terms of the will before us show a clearintention on the part of the testator to create a fidei commissum,and I do not think that the provision for the payment of an annuityto Facho out of the rents and profits of the property with whichwe are here concerned, whether it was to be paid during Facho’slife or during that of the devisee alone, is sufficient to remove theuncertainty which exists on the face of the other; provisions of thewill as to the testator’s intentions. I agree to the order proposedby my brother Grenier. .j
Grenier J.—
There was no dispute in this case as to the facts, which I maystate to be as follows. One Anna Nugara was the original ownerof premises bearing assessment No. 98, situated in the Pettah ofColombo. Her husband, Francisco Nugara, had predeceased herat the time she made her last will, which bears date September 12,1861. Anna Nugara, at the time of her death, had six children, theyoungest of whom was Andrew Bartholomeusz, and it is only withthe claim that is set up through him that we are concerned in thisappeal. Andrew Bartholomeusz died on September 19, 1900,leaving four sons, who are the plaintiffs, and a daughter, on whosebehalf, as far as I can see, no claim has been put forward. Shewas alleged in the plaint to be the wife of Percy Fernando ofColpetty. By the 4th clause of her will Anha Nugara devised thepremises in question to Andrew Bartholomeusz in the following,terms :
It is my will and desire that the house and ground situated at Malibanstreet in the Pettah of Colombo, opposite the Roman Catholic Church,shall be inherited by my youngest son Andrew Bartholomeusz, hisheirs, executors, and administrators ; and that my said son should payFacho, one of my servants, the sum of 10 shillings per month duringhis lifetime out of the rent of the said house.
Anna Nugara’s will was duly proved in testamentary caseNo. 2,622 of the District Court of Colombo, and by deed No. 9dated February 26, 1870, the executors named in the will, as wasthe practice those days, conveyed the premises to Andrew Bartholo-meusz. The conveyance by the executors showed that the premises
'(1889) 9 S. C. C. 33.
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were not required for payment of the debts, if any, of the testatrix,as also, perhaps, that they considered the devise to be free andunfettered.
The plaintiffs, as four of the children of Andrew Bartholomuesz,have brought this action to vindicate their title to four-fifths of thepremises in question, alleging as against the defendant that she hasbeen, and still is, in the unlawful occupation and possession of thesame. The date of entry by the defendant is not stated, but that,perhaps, is immaterial in the circumstances of this case. Thedefendant did not traverse the material facts relied upon by theplaintiffs, but she took an objection to their claim on legal grounds,which, if sustained, would result in the dismissal of their action.
Apparently, although the plaint did not say so in express terms,the plaintiffs relied on the 4th clause of this will as creating either afidei commissum or as subjecting the premises simply to an usufruct,and on one or the other ground they asserted title to four-fifthsas four of the children of Andrew Bartholomeusz. The defendant,however, made the matter quite clear, and precipitated the issuethat was adopted at the trial, by alleging that the devise to AndrewBartholomeusz was absolute in its terms and subject to no restrictionor alienation. The defendant further alleged that Andrew Bartholo-meusz entered into possession, and on July 29, 1884, effected amortgage of a divided portion of the premises, and that on a writof execution issued against the property of Andrew Bartholomeuszthe mortgaged property was sold and bought by Louis Gonsal,who obtained a Fiscal’s transfer for the same, bearing No. 2,554dated November 19, 1885. The defendant is the widow of LouisGonsal, and she claims the property as belonging to her and hersix children.
In view of the averments, both in the plaint and the answer, itwas inevitable that the only issue which would arise for adjudicationwould be the one agreed to at the trial, viz., “ whether the last willof Anna Nugara dated September 18,1861, created a fidei commissumin favour of the issue of Andrew Bartholomeusz.” And this wasthe issue decided by the District Judge, but wrongly in my opinion,in favour of the plaintiffs. As I read the 4th clause of the will,either by itself or in connection with clause 8, it is very difficult,indeed, to say what the intention of the testatrix was. A fideicommissum should not be lightly imposed, and when the intentiondoes not clearly appear, the inheritance should not be burdenedwith it. Apart from authority, to which I shall presently refer,I should certainly say that the terms of clauses 4 and 8 militatestrongly against the view that the testatrix intended to tie up theproperty for four generations. If I could place myself in the positionof die testatrix, I should say that the use of the words “ shall beinherited by my youngest son Andrew Bartholomeusz, his heirs,executors, and administrators,” could have conveyed to her mind
86J. JT. A 93848 01/49)
Jvly 4, 1011
Gbbkieb J.
Nugara v.Gonsal
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Jvly 4,1911 only one meaning, and that is, that her son was to take the propertyGrbnibbJ. in tite ordinary way, and that his children (by “ heirs M I think was~ meant his own children, but not remoter descendants) were toOwtsal' ^e in the same way according to accepted rules regulating thedevolution of property in this country. She evidently did notconcern herself , as to the ultimate destination of the property, asevidence by the use of the words 44 executor, and administrators."If the notary had thought of the word “ assignsI have no doubthe would have inserted it. The testatrix was well acquainted withthe peculiar duties performed by executors and administrators, forshe had appointed three executors, and granted them “ all such powerand authority as are allowed in law, and specially those of assump-tion, restriction, and surrogation.” I assume she knew thatexeputors and administrators could sell property for the paymentof debts, and in the due course of administration, and such beingthe case, I think she has no intention of imposing a fidei commissionas contended for by the respondents. The provisions of clause 8cannot possibly be reconciled with those of clause 4, and cannottherefore be given effect to in the manner and to the extent suggestedby the respondents. It is well known that people of the class towhich the testatrix in this case belonged, always display the greatestanxiety to keep immovable property in the family, whether theyimposed a fidei commission on it or not ; and the present case affordsa very good illustration of what 1 have just said. Such words asare used in clause 8, in the absence of a clear intention to create afidei commissum to be gathered from other .relevant parts of the will,should, I think, be looked upon as mere words of caution, admonitionand advice, rather than as containing an express prohibition againstalienation.
There is, however, a still more serious difficulty which the respond-ents have to overcome to keep the judgment they have obtainedin the Court below. Even assuming that . Andrew Bartholomeuszcan be regarded as the fiduciary to whom the property has beendevised in trust, who are the fidei commissaries ? The will containsno provision whatever in respect of any class of persons to bebenefited after the death of the fiduciary, unless they be the 44 heirs,executors, and administrators ” of Andrew Bartholomeusz collec-tively. There can be no serious discussion on this point, becausethe position is obviously a hopeless one for the respondents, and wasproperly not advanced.
It was argued that as the testatrix desired that Andrew Bartholo-meusz should pay Facho, one of the servants of the testatrix, thesutn of 10 shillings per month during his lifetime out of the rent ofthe house, there was an intention shown by the testatrix to impose* a fidei commissum. I, find the District Judge has adopted this view,but to me it seems a very slender reed for the respondents to clingto in the extremity to which they have been reduced in this case,
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Several local authorities were cited to us by both sides, but I 4f 1911think we are bound by the judgment of the Full Bench in the case Gbenieb j.of Tina v. Sadrist although Dias J., one of the Judges, dissented from N wthe rest of the Court. With much respect for that learned Judge, Gonsai-I think that the view taken by Fleming A.C.J., and unmistakablyexpressed by him as to the effect of the words “ heirs and adminis-trators,'* was correct. This view was practically adopted byLawrie J., as he said nothing to show that his opinion on the pointwas not the same as that of Fleming A.C.J.
The case of Tina v. Sadris was never over-ruled, and, so far asI am aware, has always been considered a leading authority on thesubject dealt by it. In the case of Hormusjee v. Cassim2 Bonser C.J.,who sat with Lawrie J., clearly favoured, if not supported, the viewtaken in Tina v. Sadris, although no reference is made to it in hisjudgment; but Lawrie J. made express reference in his judgmentto Tina v. Sadris, and stated that he retained the opinion heexpressed in that case.
For the reasons I have given I would set aside the judgment ofthe Court below, and dismiss the plaintiff’s action with costs inboth Courts.
Appeal allowed.