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The learned District Judge held that the disposition made as to 1988.the devolution of the entire estate on the death of Tampar was paromono.not revocable by him after the death of Nakamuttu, and entered than v. Sara-decree declaring the respondents entitled to a half Bhare of vanamuttuTampar’s estate.
Hayley, K.O. (with N. E. Weerasooriya), for appellants.
H. V. Perera (with Rajapaksc), for respondents.
September 24, 1928. Drieberg J.—
The appellants are the respondents to a petition of August 27,1927, by the respondents to this appeal.
By his last will of January 11, 1923, Tampar left all his propertyto the appellants, who are his nephews, and appointed the 1stappellant executor. Probate was granted to the 1st appellanton June 30, 1924.
Tampar and his wife Nakamuttu, who predeceased him, weremarried in community of property and they made a joint will onOctober 17, 1896. The 1st, 2nd, 3rd, 4th, and 6th respondents,who are the heirs of Nakamuttu, say that this will made a jointdisposition of the common estate on the death of the survivor,by which a half was to devolve on the heirs of Nakamuttu and ahalf on the heirs of Tampar. The appellants are heirs of Tampar,.but it does not appear that they are the sole heirs.
Tampar proved the will of Nakamuttu in case No. 378, obtainedprobate, and admittedly remained in possession of the whole estateuntil his death on January 13,1923.
When the 1st appellant applied for probate of Tampar’s will ofJanuary 11, 1923, the 2nd, 3rd, and 4th respondents, acting alsofor the 6th respondent, opposed it on the ground that under thejoint will they were entitled to a half of the estate as the heirs ofNakamuttu. Their objection was that probate should not 'begranted. What they should have asked was that the joint estateas it existed at the time of Nakamuttu’s death should be adminis-tered in terms of the joint will. Their application was held not in 'order and probate was allowed.
On January 31, 1927, the 1st appellant filed his final account,and on August 27, 1927, the respondents petitioned the Courtfor a citation on the appellants to show cause why they should notbe declared entitled as heirs of Nakamuttu to a half share of theproperty held and possessed by Tampar at the time of his death.
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Ahan v. Sara-
Two questions were dealt with at the inquiry on this petition.One was whether the respondents should not establish theirright by a separate action, and the other whether the joint willbecame irrevocable by Tampar accepting benefit under it on thedeath of Nakamuttu.
On the first point the learned District Judge held, and, I think,rightly, in favour of the respondents. In fact this matteT shouldhave been decided on the first petition of the respondents in 1923.Those proceedings were initiated to administer the estate of Tamparaccording to the provisions of his will of January 11, 1923. Therespondents* claim was in effect that it should be administeredaccording to the terms of another testamentary disposition. Thismatter of difference should have been then decided and adminis-tration of the estate directed accordingly.
On the second point the trial Judge found that the dispositionmade as to the devolution of the entire estate on the death ofTampar was not revocable by him after the death of Nakamuttuas he had accepted benefit under her will, and he entered decreedeclaring the respondents as heirs of Nakamuttu entitled to anundivided half share of Tampar’s estate. The appellants appealfrom this order.
The material parts of the will are as follows :—
We, Sinnakuddi Tampar and his wife Nakamuttu, residing atNachohikuda, attached to Tampalakam pattu, Trincomalee, both bythe exercise of our own discretion at this occasion of our being of clearsense and sound memory do make last will and testament as follows.
The medical expenses, funeral, and antiyeddi expenses to beincurred for us both the said Sinnakkuddi Tampar and his wifeNakamuttu, all lawful debts due and owing to others by us, and allexpenses to be defrayed for establishing and proving this last willshall be paid out of our estate.
All property movable as well as immovable now belongingand which may hereafter belong to me the said Sinnakkuddi Tampar,after my death, shall devolve on my wife Nakamuttu, subject to thestipulation which I have made hereby.
The stipulation made by me, to wit, the movable and immovableproperty which shall devolve on my wife Nakamuttu, she shall takecharge of and shall enjoy the income and profits, but shall not have■any right whatever to subject the same to any mortgage, otti, or otherbonds, or to alienate by transfer, donation, or other deeds.
In case my wife Nakamuttu shall predecease me the saidSinnakkuddi Tampar, the property of all description movable andimmovable which shall lawfully belong to me according to this last‘wifi and by right of being married to her, after my death, shall devolve
in equal half share on her heirs and on mine.
The entire movable and immovable property of all description-and of whatsoever kind now belonging and which may hereafterbelong to me the said Sinnakkuddi Tampar’s wife Nakamuttu, Bhallwholly devolve on my lawful husband Sinnakkuddi Tampar as his own-after my death. In case of my husband predeceasing me I shall haveand retain all the property movable and immovable belonging to me-according to this last will and by right-of being married to him without
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subjecting them to mortgage, otti, transfer, or gift or other deeds 1928.
and shall enjoy solely the income and profits thereof, but after my death
such property shall devolve in equal half share on his heirs and on Dwbbkbo J.
mine ….„
I have numbered the clauses of the will to facilitate reference.than v- Soro*
The survivor was appomted executor or executrix.
The rule in Dennymm v. Mostert1 is that a mutual will whichdisposes of the joint property of the survivor, the property beingconsolidated into one mass for the purpose of a joint dispositionof it, becomes irrevocable by the survivor if he has accepted somebenefit under it. When these two conditions are not presentthe mutual will operates as the will of the first dying and thesurvivor will be free to make another disposition by will.
Now the disposition of the common property must be the jointact of the two parties and it must dispose of the property on the■death of the survivor. Grotius (II. 15, 9—Herbert’s translation)says :—
“ When the spouse who dies first has bequeathed any benefitin favour of the survivor, and has afterwards limitedthe disposal of the property in general after the death ofsuch survivor, then such survivor, if he accepts suchbenefits, may not afterwards dispose of his or her shareby last will in any manner at variance with the will ofthe deceased.”
In The Receiver of Revenue, Pretoria v. Hancke and Others2Solomon J.A. explained the principle underlying this rule inthese words :—
“ It will be seen, therefore, that the will is one which in thewords of the Privy Council in the case of The South AfricanAssociation v. Mostert ‘ disposes of the joint propertyafter the death of the survivor or, as it is sometimesexpressed, where the property is consolidated into onemass for the purpose of a joint disposition of it.’ andin such circumstances the weight of authority is to theeffect that each spouse must be taken to have dealt withthe whole of their common property with the consentof the other. The will of the first dying, therefore,purports to dispose not only of his own share but alsoof the share of the survivor. And that apparently isthe view which commended itself to the Privy Councilinasmuch as the judgment in Mostert’s case treatssuch a mutual will as standing on the same footing with awill made by one spouse with the authority of the other.”
1 (1872) L. E. 4 P. C. 236. . a (1915) A. D. 64, at p. 77.
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1928. He then proceeds to explain the apparent anomaly of the firstDribbero Jdisposing of the property of the survivor on the death of the
' latter on the well recognized rule of the Roman-Dutch law, which
thantT^Sara ac^°P^ec^of the Roman law on the subject, that a testator
vanamuttu may bequeath not only his own property but also propertybelonging to others, and the heir was then obliged to purchaseand deliver it or, if it could not be bought, to give its value to thelegatee ; that when this is done in the case of a joint will of spousesthe survivor must be regarded as giving his consent to suchdisposition by joining in it and the further condition of hisaccepting benefit under it renders the will irrevocable by him,see pages 77 and 78.1
In this case Nakamuttu and Tampar made no disposition of thejoint property on the death of the survivor: Nakamuttu in herwill (clause 6), for there are two separate wills though embodiedLi one document, bequeathed her share of the common estateto Tampar “ as his own after my death ” ; Tampar for his partin clause 5 devised the share derived under his wife’s will andhis own half, which he described as “ by right of being married toher,” equally to his and her heirs. What takes the case out of theprinciples on which irrevocability is based is that this dispositionof the survivor Tampar is his own disposition and not that of himand his wife Nakamuttu.
Each spouse made two distinct dispositions, first of his or herproperty in the event of dying first and another in the event of hisor her surviving the other; there is no massing of the propertyof each and no joint disposition by both spouses of the commonproperty or any part of it on the death of the survivor.
Tampar, therefore, though he took benefit under the will of hiswife, was free to dispose of his own share and what he derivedfrom her by her will.
We, therefore, set aside the order appealed from. Therespondents will pay the appellants the costs of this' appeal andof the proceedings in the lower Court.
Garvin J.—I agree.
Appeal allowed.
(1915) A. D. 64, at pp. 77 and 78.