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Present: Wood Benton A.C.J. and Ennis J.
PEREBA v. SILVA et al102—D. C. Chilaw, 4,705.
Joint wiU—Bequest of property to three persons subject to a fidei com-mission—Death of testator—Jus accrescendi.
By a joint will the testators bequeathed one-half to Lucia, Ana,and Maria, and one-half to Phillippa and Helena. After their death“ the said shares ” were to devolve “ on their lawful issue withoutany restriction whatever.”
Held, that on the death of Maria without issue her sharedevolved on her husband (to whom Maria had left it by last will),and did not accrue to Lucia and Ana.
Ennis J.—TiUekeratne v. Abeysekera 1 does not establish morethan the principle that there is a right of accrual in a case whereone of the institutes dies before the testator, i.e., before the estatehas vested in the institutes. In this case the three institutesentered into possession of the half share left to them, and it hasto be considered whether the rule of jus accrescendi still applied.
HE facts appear from the judgment. The material clause inthe last will is as follows:—
We do hereby give and bequeath to Lucia Perera, Ana Perera, andMaria Perera of Colombo one just half of our property whatsoeverbelonging to us, and the other one-half to Phillippa Mories and HelenaMories, who shall after our death hold and possess the same withoutmortgaging, selling, granting, or otherwise alienating the same or anypart thereof, but shall only enjoy the rents and profits thereof, andafter their deaths the said share shall devolve on their lawful issuewithout any restriction whatsoever.
J. Grenier, K.C. (with him Zoysa), for the first defendant, appel-lant.—The half share of the estate given to Lucia, Ana, and Mariaformed a single fidei commissum. The testator and testatrix did notgive one-third of half to each of the three sisters of the testatrix,but half share was given to the three sisters jointly; there was onlyone fidei commissum. On Maria's death her share did not pass toher husband under her will, but passed to Lucia and Ana. Counselcited TiUekeratne v: Abeysekera,l Vansanden v. Mack,2 Jayewar-dene v. Jayewardene,3 TiUekeratne v. Silva et al.4
H. J. C. Pereira (with him F. H. B. Koch and Camkeratne), forthe third defendant, respondent.—The intention of the testator isdear from the words “ after their deaths the said share shall
* (1897) 2 N. L. J*. 313.» (1905) 8 N. L. B. 283.
* (1895) 1 N. L. R. 3U.* (1907) 10 N. L. R. 214.
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devolve on their lawful issue without any restriction whatever.” Ifthe contention for the appellant were to be upheld, the children ofthe survivor of the three sisters would inherit the half share; thatdoes not appear to have been the intention of the testator. Section20 of Ordinance No. 21 of 1844 abolishes the law as to survivorship(jus accreacendi). In TUlekeratne v. Abeyaekera 1 the judgment ofthe Privy Council does not consider this section.
The principle of jus accreacendi would not apply after the deathof the testator, once the fiduciarii have entered on the inheritance.Counsel cited Morice’s English and Roman-Dutoh Law 304.
J. Grenier, K. C., in reply.—On the death of the survivor of thethree sisters, the children of all the sisters would divide the property,and it would not go to the children of the survivor only.
Cur. adv. cult.
June 16, 1913. Ennis J.—
This was a partition action regarding the estate formerly belongingto Simon Mories and his wife, and bequeathed by them in a jointwill, one-half to Lucia, Ana, and Maria Perera, and one-half toPhillippa and Helena Mories. After their'death “ the said shares ”were to devolve " on their lawful issue without any restrictionwhatever. ’ ’
Maria Perera died without issue, and the District Court has allowedone-sixth share of the estate to her husband Louis de Silva (thirddefendant).
The appeal has been presented by Lucia Perera (first defendant)on the ground that the interests of Maria Perera accrued to herselfand Ana Perera on the death of Maria Perera.
The evidence shows that the intention of the will was to dividethe property equally between the sisters of the husband on the onepart and the sisters of his wife on the other, and the District Judgehas found that it was the intention of the testators that the lawfulissue of the institutes should take the property as a “ free inheritance. ’ ’
It has been argued for the appellant that as the form of dispositionwas not one-third of a half share to each of the institutes, but agift of a half to the three institutes jointly, there was a right ofsurvivorship.
The case of TUlekeratne v. Abeyaekera1 was the principal caserelied upon in support of the argument. That case, however, doesnot appear to me to establish more than the principle that thereis a right of accrual in a case where one of the institutes dies beforethe testator, i.e., before the estate has vested in the institutes. Inthis case the three institutes entered into possession of the halfshare left to them, and it has to be considered whether the rule ofjue accreacendi still applied.
> (1897) 2 N. L. R. 313.
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Section 20 of Ordinance No. 21 of 1844 was held in Vajisanden v.Mack 1 to be suspended where the intention of the testator wasto preserve the estate intact in the family.
In the present case the District Judge has found that this wasnot the intention of the testators, but that it was their intentionthat the issue of the institutes should take the property as a “ freeinheritance.”
In the words of the will the property was to devolve on thelawful issue of the institutes " without any restriction whatever.”If the rule of jus accrescendi were to apply, to preserve the propertyintact, the property would devolve only on the children of the lastsurviving institute. This would be a restriction on the devolutionof the property to the issue of the institutes who died first. I amtherefore of opinion that the finding of the learned District Judgeas to the intention of the testators was right; that the intention ofthe testators was not to' preserve the property intact, but to dividethe property equally between the two groups, the sisters of thehusband and the sisters of the wife surviving at the death of thetestators; and that on the death of Maria without issue, her sharein the property was freed from the fidei commissum.
I would dismiss the appeal with costs.
Wood Benton A.C.J.—
I agree. The testator and testatrix clearly intended that thelawful issue of each institute, as well as the institutes themselves,should be benefited by the will. Neither expressly, as in Tillekeratnev. Abeysekera,2 nor by necessary implication does the will indicatethat, on the death of one institute, the survivors are to take bysubstitution. The construction placed by the learned DistrictJudge upon the will is thus justified both by the intention of thetestator and testatrix and by the language which they have used.It is also a construction the practical application of which presentsno difficulty. The interpretation, on the other hand, which theappellant asks us to adopt compels us either to read the will as if ittook account only of the lawful issue of the last surviving institute,or to add to it a clause, which would do equal violence to its language,providing that, on the death of the last surviving institute, the lawfulissue then surviving of all three institutes should succeed. Theappellant’s counsel seemed to favour this latter alternative. Butthe will throws no light on the question whether, if it were adopted,the succession be by representation or per capita. To construe thewill in either of the senses which the appellant’s position involveswould be to make a new will for the parties rather than to interprettheir existing one. I think that the' language of the will itself
* (ISOS) 1 N. L. R. 311.
2 (1897) 3 N. L. R. 313.
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excludes the jus accreseendi. But apart from that, there would bea serious question whether section 20 of Ordinance No. 21 of 1844,which does not seem to have been considered by the Privy Councilin Tillekeratne v. Abeysekera,l does not abolish that right as regardsevery will made after its enactment, the dispositions of which donot expressly, or at least by necessary implication, recognize it.The appeal must be dismissed with costs.
PERERA v. SILVA et al