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Present: De Sampayo J. and Schneider A.J.
PINNWARDENE v. FERNANDO302—D. C. Negombo, 12,409.
Fidei wimmimmm—Interpretation of will—Devise to children, grand-children, heirs and representatives descending from them.
By a joint will the testators devised their landed property to theirseven children and three others severally, and* provided as follows:—“ In thin manner, after our death, they shall take charge of theirsaidrespectiveproperties aswehaveordained, and they, their
children, grandchildren, heirs, and representatives descending fromthem shall possess the same; but they shall not sell or alienate thesaidpropertiesinany manner,orcausethe same to be subject to
anymortgageorsecurity. Shouldsuchan act be committed, the
right – of the person who sells or alienates the lands or land
shall cease, and it is ordained that the same shall go
.over to the Crown.”
Held, thatthewill createdavalidfidei commission in favour
of the children, grandchildren, and remoter descendants of thedevisees. Fernando v. Salgado 1 queried.
rJ''HE facts appear from the judgment.
A. St. V. Jayawardene (with him Crooe-Dabrera), for first defend-ant, appellant.—The presence of the words “ heirs and represen-tatives ” in the clause indicating the beneficiaries is obnoxious to thevalidity of the fidei. commie sum. There is no. clear designation ofthe parties to be benefited by the fidei commissum. The testatorshaving in a previous clause made an unfettered grant of the properlyto the devisees cannot by a provision in a later clause limit theoperation of that grant. Counsel cited Tina v. Sadiris2 Hot-muajee v. Cassim,3 Asya TJmmav. Noordeen,* and the decision ofthe Full Court in the same case reported in (2906) 8 N. L. R. 350,Dassanaike v. Dassonaike,5 Silva v. Silva.*
This same will has been the subject of the case of Fernando v.Salgado,1 where it was held by the Supreme Court that it created avalid fidei commissum. This Judgment has been acted upon by theparties. The Court cannot now question the soundness of thatjudgment.
Samarawickreme, for respondent.—The clause creates a validfidei commissum. The Court should look at' the instrument as awhole, and if it could be gathered that the intention of the testator
(1911) 14 N. L. B. 310.
(1885) 7 S. G. G. 135.
(1896) 2 N. L. B. 190.
(1902) 3 N. L. B. 173. .
(1906) 8 N. L. B. 361.
(1914) 18 N. L. B. 174.
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1919.was to create a fidei commisaum, the Court should give effect to such
Ptmtuordentintention, in spite.-of the presence of words which may be apparently
*. Fernando against the creation of a fidei commisaum. The judgment reportedin 14 N. L. R. 310 is not binding on the respondents. Counsel citedWijetunga v. Wijetunga,1 Weerasekera v. Carlina,2 Selembram v.Perumal.3
Jayawardene, in reply.
Cur. adv. vuIt.
March 26, 1919. Db Sampayo J.-—
The question for decision in this case is whether the joint will ofDon Philippu and his wife Justina, dated March 12, 1842, createsa valid fidei commissum. The first defendant-appellant claimscertain shares of the land called Diulgahawatta alias Kosgahawattathrough mesne conveyances from Elizabeth, daughater of one of thechildren of the testators. The first added defendant is one of thethree children of Elizabeth, and claims adversely to the first defend-ant under the fidei commissum which, she says, is created by thejoint will. The testators devised their landed property to theirseven children and three others severally, and provided as follows:
“ In this manner, after our death, they shall take charge of theirsaid respective properties as we have ordained, and they, theirchildren, grandchildren, heirs, and representatives shall possess thesame, but they shall not sell or alienate the said properties in anymanner, or cause the same to be subject to any mortgage or security.Should such an act be committed, the right of the person-who sells oralienates the lands or land, or causes the same to be subject to anymortgage or security, shall cease, and it is ordained that the sameshall go over to the Crown.”
The- contention on behalf of, the first defendant-appellant is thatby reason of the use of the words “ heirs and representatives ” inthe condition which prohibits alienation, and provides that theproperty shall be possessed by ‘‘ the children, grandchildren, heirsand representatives,” there is no clear designation of the fidei com-missarius, and that, therefore, no Valid fidei commissum is createdby the will. The appellant also relies upon the construction to thateffect put upon this same will by this Court in Fernando v. Salgado.*' I should myself feel bound to follow that decision as an authoritativeinterpretation of the will, but for one or two matters which appear tome to call for consideration of the effect of the will anew.
have quoted the above passage from a translation which is filedin Fernando v. Salgado* but which, I think, is not quite accurate.The judgment of this Court was based on that translation. I havelooked into the original filed in the Testamentary case No. 1,444 ofthe District Court of Colombo, in which probate of the will was
111912) 16 N. L. R. 493.* (1912) 16 N. L. R. 1.
(1912) 16 N. L. R. 6.
(1911) 14 N. L. R. 310.
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granted on October 2, 1864. I find that the expression in the Sinha-lese meaning “ children, grandchildren, heirs, and representatives ”is preceeded by the words ohungen pewathena, which means “ de-scending from them.” The whole expression thus is “ the children,grandchildren, heirs, and representatives descending from them.”The word “ heirs ” by itself presents no great difficulty. It is collo-cated with tiie words dam munu pum urumakkara, which may betranslated “ children and grandchildren and heirs who descend fromthem. ” Moreover, I' find that in another part of the same will, towhich I shall refer presently, the word ” heirs ” is used to describethe children, and I may say that the use of that word as synonymouswith “ descendants,” who are naturally the heirs of a man, is notuncommon among the Sinhalese. It is the other word " represen-tatives ” which is said to alter the whole aspect of the disposition.The Sinhalese expression is balayalath ayavolun, which literallymeans “ those who have obtained authority,” and which is some-times used to convey the idea of “ administrator.” In the colloca-tion in which it appears, however, I think it loses its significance.The District Judge has rightly pointed out that the trend of judicialopinion since the date of the decision in Fernando v. Salgado 1 isnot to emphasize such technical phraseology as ” heirs, executors,administrators, and assigns,” whenever the instrument as a wholeshows a clear intention to create a fidei oommiaeum, and sufficientlanguage is used to express it. I need only refer in this connectionto Dassanayaka v. TiUekeratna,* in which the will was almost insimilar terms to tire will now in question.' As regards the rule ofconstruction, Show J. said in Mirando v. Coudert * that the documentmust be looked at as a whole, and that if the intention to create afidei commis8um was clear, effect should be given to it, though theremight be in the document expressions inconsistent with a fidei com-missum. This is in accordance with the principle enunciated insuch English cases as Amndell v. Arundell,* where it is laid downthat a Court of Equity looks to the general intent of a deed, and will .give it such a. construction as supports that general intent, althougha particular expression in the deed may be inconsistent with it.This is so more especially in the case of wills. In teetamentiebenignir interpretatio facienda eat. In re Haggarth, Wickham v.Haggart5 it is stated that the intention is competent, not onlyto fix the sense of ambiguous words, but to control the senseeven of clear words, and to supply the place of express words incases of difficulty or ambiguity. In the present case there is noquestion as to the. intention of the testators to create a fidei com-missum in favour of the successive generations of their children, and 1
1 (1911) 14 N. L. R. 310.* (1916) 19 N. 'L. B. 90.
* (1917) 20 N. L. B. 89.* 1 Myl. & K. 316.
« (1913) 2 Ch. IS.
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I think that the word “ representatives ” may either be disregardedas meaningless, 'or be taken as a mere extension of the idea ofsuccession conveyed by the previous words with which it isassociated.
It will further be seen upon,a perusal of the decision in Fernandov. Salgado1 that Qrenier J., who delivered the judgment of the Court,strongly emphasized the second clause of the will, which, in thetranslation above referred to, runs as follows: “ We, the testators,do hereby ordain that the property inherited by the right of ourparents and those acquired by us, which we more fully describehereunder, are to be devolved on the hereinafter-mentioned sevenchildren and others who shall be the heirs after our death, and thatthey are at liberty to possess severally as their shares of inheritance.”
The learned Judge comments on this, and says: “ Standing byitself the clause contains words the meaning and intentions of whichare plain enough. The use of the words 'who shall be the heirsafter our death,’ and the words ‘ are at liberty to possess severallyas their shares of inheritance,’ indicates an intention on the part ofthe testator and testatrix to make an absolute devise to each of hisseven children of separate and distinct lands or shares of land.”Now the translation ia inaccurate, especially in the very expressionson which the learned Judge relies. The words translated as “ whoshall be the heirs after our death ” are ape maranayen pasu eta urn-makkarayowe eitina, the true sense of which is “ who are the personsto succeed to our property after our death.” They are in no wayintended to constitute the seven children as heirs under the will,nor is it attached, as the translation makes it appear, to the otherbeneficiaries in the will who are not the children of the testator.The last word eitina signifies the children’s present status as wouldbe heirs, and, in my view, the whole expression is only descriptiveof the children as those who naturally will succeed to their parents.The other expression " are at liberty to possess severally as their,shares of inheritance ” purports to be a translation of urumakotabtikthi vindina. There is nothing here corresponding to “as theirshares of inheritance.” The”sense of the word is “ to possess by wayof inheritance,” which, I think, is innocuous. The whole passage maybe roughly translated as follows:“ We direct that the properties,
as well inherited by us from our parents as acquired by us, which arehereunder specified, having devolved as inheritance on our sevenchildren, who are the heirs to succeed to us after our death, and onthe other persons named below, shall be possessed by them in themanner hereinafter provided.”
I do not think that the clause contains an absolute devise of theproperty to the children. On the contrary, it appears to me toprovide that they shall possess the property in the manner there-after stated, that is to say, subject to the condition and restrictions
1 (mi) 14 N. L. It. 310.
■ subsequently stated in the will. In view of the faulty translation 1*^which the learned Judges in Fernando v. Salgado * had before them,and of the liberal and, if I may say so, proper rule of constructionadopted in the current of later decisions, I think we are free to rtMwn*p>construe the will ourselves. In my opinion the' will creates a valid v‘ Fernandofidei eommieeum in favour of the children, grandchildren, andremoter decendants of the devisees, and the judgment appealedfrom is therefore right.
would dismiss the appeal, with costs.
Schneider A.J.—I agree.
PINNWARDENE v. FERNANDO