090-NLR-NLR-V-15-ROBERT-v.-ABEYWARDANE-et-al.pdf
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■ .Present : De Sampayo A.J.
ROBERT v. ABEYWARDANE et al.
92—0. B. Galle, 10,990.
Fidei commissum—Prohibitionagainst alienationout ofthe family—
Minor adiating inheritance.'
A prohibition against alienation outof thefamily of» legatee or
donee is itself sufficientto create afidei commissumin favour of
the members of the family.
A last will containedthe followingclause:" They(the children)
shGuld not sell, mortgage, Ac., the immovable property to strangersexcept the original heirs; nor could one or more people outside their .circle be granted or obtain any rights."
Held, that the will created a fidei commissum; and a mortgage bya devisee to a person outside the family was held to be invalid.
A minor cannot adiate an inheritance, and is not liable to be suedfor the debts of the ancestor.
fjp HE facts are set out in the judgment.
Oooray, for appellants.—The clause in question creates a fideicommissum. Where the prohibition is against alienation out of thefamily the persons to be benefited need not be specifically described.The expression of ah intention that the property should remain. in the family is sufficient (Fo«f 36, 1, 27). Here the intention isabundantly clear that the property should remain in the original“ heirs ”, and should not go to “ strangers ”.
A minor cannot adiate an inheritance and be sued for the debtsof his ancestors. Pathman v. Kanapathipillai.1
A. 81. V. Jayewardene, for the respondent.—The persons .to bebenefited must be clearly designated. The language employedcreated, some doubt in the mind of the Commissioner, and in casesof doubt the Supreme Court has always declared in favour of a freeinheritance.
Cooray, in reply..
Cur. adv. vult.
June 27, 1912. De Sampayo A.J.—
The plaintiff sues on a mortgage bond dated May 31, 1910, bywhich one William Jayesuriya mortgaged to plaintiff a one-fourthshare of a certain land to secure a sum of Rs! 75 and interest. Thedefendants are widow and child of the mortgagor. The main
i (1893) 1 fir. 118.
26-
1012
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1912 question for decision is whether the mortgagor was absolutelyD» Samfayo entitled to the property mortgaged, or whether he had it subject to aA,J, fidei commissum.. The entire property originally belonged to hisRobeit v Parents, who by then- last will dated February 7, 1873, devised it toAbeywardane their children, of whom the said William Jayesuriya was one. Thewill, which by the 12th clause gave the property to the children,contained a condition which, according to the translation filed in thecase, ran as follows: “ They (the children) should not sell, mortgage,or give in rent for a term of more than two years at a time the
immovable propertyto strangers except to the original
heirs, nor could one or more people outside their circle be granted orobtain any rights.” I have had the original will sen.t for, and theInterpreter Mudaliyar of this Court has certified to the correctnessof this translation. The learned Commissioner has held that thewill created no fidei commissum. He says that there is a clearprohibition against alienation out of the family, but that there isno indication of the persons to whom the property in the event ofalienation is to go over. Now, a prohibition against alienation outof the family of a legatee or donee is itself sufficient to create a fideicommiasum in favour of the members of the family. Illustrationsof this kind of fidei commissum will be found in Voet 36, 1, 27,and 2 Burge 112 and 113. In Joseph v. Mulder 1 the words were,“ The said grounds shall never be sold or parted with in favour of astranger, but shall permanently remain among legal heirs,” whichthe Privy Council construed as creating a fidei commissum con-ditional. It seems to me that the words in the present will have thesame effect, with this difference, that the prohibition, being personaland not real, extends only to the immediate devisees. See Sande onProhibitions, part 3, chapter 2. The plaintiffs in Joseph v. Mulder1did not succeed, only because their action was held to be premature,as the prohibition was against a sale only, and the action merelysought a declaration that the mortgages in question were null andvoid, though the property had not been brought to a judicial sale oreven a mortgage action instituted for that purpose. The prohibitionin this case is against a mortgage as well, and as the defendants wouldnot be able hereafter to raise the question if a decree for realizationof the mortgage by sale of the property were entered, the defend-ants have rightly raised the question by way of defence. See alsoSilva v. Philipps.2 In my opinion, the will created a fidei commissum,and the mortgage to a person outside the family, or, as the will putsit, ” outside the circle,” is invalid. The plaintiff’s action, therefore,cannot be sustained so far as it seeks to realize the mortgagedproperty.
There is however the money claim, which of course, may bemaintained against a proper representative of the deceased WilliamJayesuriya. The second defendant is a minor, and is joined as a1 (190$) A. C. 190; 3 Bal. 86.2 (1908) 11 N. L. R. 164.
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defendant on the footing of his being an heir; but -a minor cannot IMS'adiate the inheritance, and is not liable to be sued for the debts of thestun-tw.
ancestor. The first defendant is widow of the deoeased, and thereA.J.
is evidence that she intermeddled with the property of the deceased’s Robert v.estate °Jid so made herself an executrix de son tort. Judgment may Abeywardanetherefore, go against her for the debt due by the deceased. I setaside the decree in this case and dismiss the action as against the-second defendant, but judgment will be entered against the first,defendant for the money as claimed, to be realized out of theproperty of the deceased in her. hands other than those derived byhim under the will of his parents.
As the main question has been as to the validity of the mortgage,the plaintiff will pay the defendant’s costs in both Courts.
Set aside.
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