093-NLR-NLR-V-19-PEDRIS-et-al.-v.-FERNANDO-et-al.pdf
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Present: Ennis J. and Shaw J.
PEDBIS et al. u. FEBNANDO et al.
137—D. C. Colombo, 5,42415,429.
Joint will—One daughter disinherited—Property bequeathedSurvivor dying without making another will—Doesintestate 9—Does property pass to the children ofexcept the disinherited daughter9
Where an heir or next of kin has been disinherited by a will andno specific devise or bequeBt has been made of the property toothers, the disinheriting danse is not invalid; in such a case the'next of kin, other than the persons named as excluded, are entitledto succeed.
Lidolis and Bocha were married in community of property andhad threedaughters, Lilian, Rosaline, and Madeline. Bytheir
joint will they confirmed certain deeds' of gifts to their daughters,and a deed (No. Ill) whereby Rosaline was “ to receive Rupees
i (1906) 9 N. L. R. 251.
tosurvivor—
survivor diejoint testators
1016
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1016.
Pedriav. Fernando
Thirty per month after our death." The will proceeded to declarethat, beyond this, Rosaline should have no right to their estate,and expressly disinherited her. The will further contained abequest of the Tesiduary property to the survivor. Lidolis diedfirst; and then Bocha, without having made another will.
Held, that Bocha had not died intestate.
EnhibJ.—Thecontention that the will under consideration
cannot be taken as the will of the~ survivor Bocha, because as suchit names no heir, is unsound.
Shaw 7.—The clause in the will disinheriting Rosaline amountsto a gift by implication to the other two daughters of the testatrixof the residue of the estate to the exclusion of the disinheriteddaughter.
fjl HE facts are set out in the judgment.
H. J. C. Pereira (with him A. St. V. Jayewardene and Ganeke-ratne), for appellants.
Bawa, K.G. (with him M. W. H.. de Silva), for first and secondrespondents..
E. G. P. Jayetileke (with him A, V. de Silva), for third andfourth respondents.
Cur. adv. vult.
November 24, 1916. Ennis J.—
The first of these appeals is from a judgment declaring one BochaFernando to have died intestate, and directing the appellants, theapplicants in No. 5,429, to pay costs. The second is from an ordergranting administration to Rosaline Fernando, the applicant inNo. 5,424. Both appeals are in the matter of the estate of Hewa-dewage Bocha Fernando. It appears that one Lidolis, or TheodorisFernando, and Bocha Fernando were married in community of pro?perty and made a joint will. They had three daughters, Lilian,Rosaline, and Madeline. The will confirmed certain deeds of giftto the daughters. It also confirmed a deed, No. Ill of February 5,1900, whereby Rosaline "is to receive a sum of Rupees Thirty(Rs. 80) per month after our death out of the rents and profits ofthe premises given and granted by the said deed.
The will proceeded to expressly declare " that save and exceptthe said monthly sum of Rupees Thirty (Rs. 30) which the saidHewadewage Rosaline Fernando is to receive during her lifetime afterthe death of her parents, in terms of the provisions of the saiddeed No. Ill of the Fifth day of February, One thousand Ninehundred, she shall have no manner of right to, or interest in, anyshare or part of our estate, and we do hereby expressly disinherither and her descendants.” The will then contained a bequest ofthe residuary property to the survivor. Lidolis Fernando diedfirst. Bocha Fernando then died, without having executed any
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other will. The learned Judge found that the will operated only06 the will of Udolis Fernando, and did not operate as the will ofBocha Fernando, and he accordingly found that Bocha Fernandohad died intestate.
In Juta’s Leading Cases, Part II., at page 114, there is a note:“ Although every mutual will is the separate will of each of thespouses, it by no means follows that the mutual will is the will ofthe survivor. A mutual will may be drawn in such terms—and oftenis—that it operates as the separate will of each of the spouses, butonly of the one who dies first: upon his or her death the mutual willcomes into operation as the will of the first dying, whichever ofthe spouses died; but with that the mutual will ceases to haveany farther effect.
The respondents rely on this note, but it seems to me to be againsttheir contention. In Michau’s case (page 116) the will containeda disposition of property by the '* first-dying ” spouse only. Clearlysuch a will could not operate as the will of the survivor, and thesurvivor having died without making a new will, it was held thathe died intestate. It was argued for the respondents that this wouldbe the effect of any mutual will which did not make dispositionsof the property to operate after the death of both spouses, andit was contended that the will in question makes no suchdisposition. Barry’s case (page 147) shows that where the mutualwill disposes of part of the joint property after the death of bothspouses, the survivor cannot revoke the disposition as to that partby another will, but it does not support the contention that in theabsence of another will the survivor would die intestate as to allproperty, except the part disposed of by the joint will. InMas text *8 case (page 110) the Privy Council laid down the followingpropositions: —
“ (1) That mutual wills, notwithstanding their form, are to beread as separate wills, the dispositions of each spousebeing treated as applicable to his or her half of the jointproperty.
** (2) That each of the spouses is at liberty to revoke his or herv part of the will during the co-testator’s lifetime, withor without communication with the co-testator.
“ (3) That either of the spouses is at liberty to revoke his orher part of the will after the death of the co-testator,subject, however, to the following:—That the survivingspouse has no right or power to revoke a mutual will if(a) the mutual will disposes of the joint property on thedeath of the survivor, or, as it is sometimes expressed,where the property is consolidated into one mass for thepurpose of a joint disposition of it; and (6) the survivorhas accepted some benefit under the will. ”
1916.
Emns J.
Ptdrisv. Fernando
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me.
Ekhis J.
Pedriev. Fernando
Unless the words of the joint will are such as to apply to the estateof the first dying only, I imagine the will would be effective as theseparate will of the survivor if the survivor made no new will. Thecontention that the will under consideration cannot be taken as thewill of the survivor Bocha, because as such it names no heir, isunsound. The heirs are successors in law, and by Roman-Butchlaw the term applies to succession to both real and personal property,and there can be more than one heir (in England there is only oneheir, and heirship applies to real property only). In the provisions ofthe joint will disinheriting Rosaline there is a disposition of the pro-perty among the heirs; moreover the will clearly shows, that theother heirs are td benefit, for it confirms certain gifts made intervivos to the other children, and refers to this confirmation as adisposition of shares “ of our estate. ” In my opinion, therefore,the first appeal must succeed, and, consequently, the appellantsin the second appeal are entitled to letters of administration.
I would allow both appeals, the costs both on appeal and in theDistrict Court should be paid out of the estate.
Shaw – J t—
These are appeals, the one from the refusal of the District Judgeto grant Lilian Pedris, the eldest daughter of Bocha Fernando,deceased, administration of the estate of Bocha Fernando with thewill of July 29, 1901, annexed, and the other from the order of theDistrict Judge granting letters of administration to a youngerdaughter, Rosaline Fernando.
According to the rule enunciated by the Privy Council in 8. A.Association v. Mostert,1 the mutual will of Bocha Fernando and herhusband must, in. my view, be considered as the separate wills of thespouses, and I can see nothing in the other cases cited to us fromJuta to show that the form or wording of this particular willtakes it out of the general rule and makes it the will of the first-dying spouse only, as was contended on behalf of the respondents.On the contrary, the provision for the disinheriting of the daughterRosaline seems to show. the intention was the reverse, as thatprovision can have no meaning except as a disposition by thesurviving spouse.
It was contended on behalf of the respondents that the Englishcases show that where an heir or next of kin has been disinheritedby a will, and no specific devise or bequest has been made of theproperty to others, that the disinheriting clause is invalid, and theheir or next of kin nevertheless takes the property.
So far as the rule may apply, when the heir at law has been excludedfrom the succession to real property, it has no application here, wherewe have no sole heir to either immovable or movable property.
*■'Jula’s Leading Cases, Part II., p. 107.
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Hovjp far it would apply here if a testator disinherited the whole ofthe inext of kin X need not discuss, because the testatrix in thepresent case has purported to disinherit one of her next of kin only.The. English cases do not, however, show that if a testator excludessQme only of the next of kin, without specifically bequeathing his
t
r£$on to some one else, the disinheriting clause is of no effect; oncontrary, they seem to me to show that the disinheritance
endtes for the benefit of the other'next of kin.
The English rule on the subject is very fully discussed in thejudgment of Vice-Chancellor Kindersley in Lett v. Randall.* TheVice-Chancellor there gives the reason for the rule rendering the dis-inheritance of no effect when the testator excludes the heir at lawfroifi inheriting real property, or the whole of the next of kin frominheriting his personality, namely, that it would amount to a declara-tion that no one should succeed, as there could be no escheat toth&Crown so long as there is an heir or next of kin; he then goes onto say, “ but the exclusion by declaration of one or some only of thenexi of kin, if it be valid, must enure for the benefit of the rest,and has the same effect as a gift by implication to them of the shareof those who are excluded. ”
'The more recent case of Bund v. Green – also shows that wheresome only of the next of kin are excluded and there is an intestacy•as to the residue of the estate, the next of kin, other than thepersons named as excluded, are entitled to succeed.
' In the present case the clause in the will disinheriting Rosaline,ip .my opinion, amounts to a gift by implication to the other twodaughters of the testatrix of the residue of the estate to the exclu-sion of the disinherited daughter; not only- does this result followfrom the mere exclusion of her as one of the next of kin upon jtheprinciples I have stated above, but in the present case the intentionOf the testatrix seems to me to be clearly shown from the contextof the part of the will where the disinheriting clause occurs, where thete&atrix is specifically dealing with the provision that has beenmade for the three daughters.
f l would therefore allow both appeals and direct letters of adminis-tration, with the will of July 29, 1901, annexed, to issue to theappellant Idlian Pedris, and would direct that the costs of theproceedings, including the costs of this appeal, should come out ofthe estate.
4 l •
Appeal allowed.
i 3 8m. 6 Giff. 83, at page 89.
1916.
Shaw j.
Pedrisv. Fernando
2 12 Ch. Div. 819.