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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Benton.
SAMABADIWAKARA et al. v. DE SARAM et al.
D. C., Colombo, 26,602.
Joint will—Fidei commiasum—Usufruct—Widow—“ Lawful heir.",
The joint will of Tames Alwis and his wife Florence, who weremarried in community of property,provided that, in the event
of thetestatrixsurviving the testator,certainpropertiesshould-
vest in the testatrix, subject to the conditions, inter alia, that thetestatrix should not have the power to sell or otherwise alienatethe same, but should have a life interest therein. Upon the deathof the survivor the property was to vest in Edwin Robert. EdwinRobert survived the testator, but predeceased the testatrix.
Held, that under the last will thr- dominium vested in the testa-trix, subject to a fidei commissum in favour of Edwin Robert; andthat asEdwinRobert predeceased thetestatrix,the titlevested
absolutely in her.
The joint willfurther provided thatwith respect tocertain
specified properties that they should not bo sold, or in anywisealienated' or encumbered, but that they should devolve respectivelyon the “ lawful heirs ” of the devisees.
Held, that the widow of a devisee was a lawful heir by virtue ofsection 26 of Ordinance No. IS of 1876.
rpHE facts are fully set out in the judgment of Wood Benton J.
Rawa (with him Samaraioickrame), for appellants.
Van Langenberg, Acting 8.-0. (with him F. M. de Sanm andA. St. V. Jayewardene), for respondents.
Cur. adv. «uR.
July 18, 1910. Hutchinson C.J.—
I have already in my judgment1 given on March 16 last sufficientlystated my reasons for adopting the construction which I placed onthis will, and I have heard no new arguments which have shakenme in my opinion. I think, therefore, that it is.enough for me tosay that in my opinion both these appeals should be dismissed,with costs.
i2i. S. A 89188 (6/19)
1 See 2 Cur. L. R. 104.
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July 18,1910 Middleton J.—
I do not propose to add anything further to what I have written■De Saram already in these two oases. It is sufficient, for. me to 6ay that Ihave not been convinced by the later arguments in review that Iought to change my opinion in either case. I think that bothappeals in review should be dismissed with costs.
Wood Benton J.—
In my opinion the judgment of the Supreme Court in each ofthe appeals in this case should be affirmed with costs.
The litigation between the parties has arisen out of a joint willmade by the late Mr. James Alwis, Advocate, and his wife, FlorenceAlwis, on April 27, 1878. Mr. Alwis died in July, 1878, survivedby (1) his widow and joint testatrix, Florence Alwis; (2) one son,James Henry, by a first marriage; (3) another son, Edwin Robert,and three daughters, the first, third, and fifth defendants-respondents, by his second marriage. The second, fourth, and sixth• defendants-respondents are respectively the husbands of the first,third, and fifth. Florence Alwis adiated her share under the jointwill. On January 26, 1901, she made another will by herself, inwhich she confirms the joint will, and says that “it is in respectof the rest of my movable and immovable property not included ”in the joint will; and the will of January 26, 1901, contains in factno reference to the properties dealt with in that will and in claimin the present case. Both wills have been proved. The seventhdefendant-respondent is the administrator, with the will annexed,of the joint estate of the deceased spouses. Edwin Bobert died onJune 16 leaving a widow, the first plaintiff-appellant, who is thewife of the second. In this action the appellants claim a declara-tion that the first plaintiff-appellant is entitled to an undividedone-half share of two properties at Kollupitiya known as the“ Synagogue ” and “ Barandeniya Cottage.’’ These propertiesbelonged to the estate of the late James Alwis, and were disposedof by the joint will. The District Judge dismissed the appellants’action. The Supreme Court affirmed the judgment as regards“ Barandeniya Cottage,” but set it aside as regards the “ Synagogue.”Each side challenges the finding, adverse to itself, in reviewpreparatory to an appeal to the Privy Council. The questionsinvolved in the cross appeals depend on the construction of thejoint will, which was made in English.
The material provisions in the joint will are these: —
'* m.—In the event of the testator dying first, we give, devise,and bequeath to James Thomas Alwis the sum of Bs. 2,500, tobe invested by our executors in .the purchase of landed, properly,and by them conveyed to him and his heirs at the expense of our
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estate, under .the condition that he shall not mortgage or alienate 18,1910the same in any manner whatsoever, but shall only have a life ^OODinterest therein.”Renton J.
VI.—This clause is headed “ Ad interim provision for children.” samara..After reciting the names of his children, and his desire to provide diwakara vfor them without any invidious distinction, but taking due account DeSaramof the fact that he had received a large amount of property fromhis first wife, the mother of James Henry Alwis, the testatorproceeds to make specific bequests of property, upon the attainmentof twenty-five years of age or marriage, to (a) James Henry, (b)the first defendant-respondent, (c) Edwin Bobert, (d). the thirddefendant-respondent, and (e) the fifth defendant-respondent.
Then comes clause VII. It is entitled “ Provision for She testatrixif she survive the testator,” and commences as follows: —
” It is our will and desire that all the movable property as abovesettled, and all .the immovable property, until they shall be trans-ferred as above directed, and the other following lands' and houses,shall be vested in me, the testatrix, subject to the under-mentionedconditions.”
A list of forty properties is given; No. 3 is the "-Synagogue,”
No. 4 is " Barandeniya Cottage.” The clause then proceeds—
“ We desire that our executors shall sell, as they may deemnecessary, or as fit opportunities present themselves, but not other-wise, the above lands and prerEises from No. 17 …. .to No. 40
bo.th inclusive, and that until such sale or saleB the
revenues, income, and profits of .the said several premises shall becollected and paid to me, the testatrix, and, when any sale or salesshall be made, the moneys realized shall be funded, together withother incomings, until all the legacies hereby bequeathed could bepaid. Our executors shall not sell the first, sixteen lands andpremises hereinbefore mentioned, nor shall I, the testatrix, havethe power to sell or otherwise alienate the same or any of them,but I shall have a life interest therein.” Out of any moneys raisedby sales under the foregoing provisions, each of the testator’s threedaughters, the first, third and fifth defendants-respondents, is toreceive as soon as the said moneys, are realized, or sooner ifpracticable,” a sum of Bs. 10,000 for the purchase of a house, theright to which shall be " vested ” in each of them. This clausehas been construed by the Supreme Court in S. C. No. 402, D. C. F.,
Colombo, 26,601, as constituting not a trust, but only a power, forsale, and as vesting the properties (Nos. 17-40) in .the testatrixsubject to that power. No appeal has been – taken from thatdecision.
Clause VIII. is entitled " Inheritance upon the death of both ofus.” It provides that, " upon the death of the survivor of us,”'certain specified properties 6hall " vest ” in the .testator’s children
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July 18,1910 respectively. In particular the “Synagogue” and “ Barandeniya Cottage ” are to “ vest ” in Edwin Robert.
Kenton J. Clause IX. is headed “ Restrictions on the above inheritance."
It directs .that the “ Synagogue ” shall not be sold, or in anywisednoatsarav. alienated or encumbered, but shall devolve on the “ lawful heirs ’’DeSaram Qf Edwin Robert; and “in the absence of any such lawfulheirs, on the persons whom we institute heirs or his or herlawful heirs.”
Clause X. institutes as heirs James Henry, Edwin Robert, thefirst defendant-respondent, the third, and the fifth.
Clause XI. appoints executors. Edwin Robert was one of them.
I may dispose at once the question raised by the cross appealas to whether, assuming that there was a valid fidei commissarysubstitution created by clause IX. in favour of the “ lawful heirs ”of Edwin Robert, the first plaintiff-appellant, his widow, by virtueof section 26 of Ordinance No. 15 of 1876, came under that category.
I think that she did, for the reasons which I have given in myjudgment on the appeal (Samaradiwakara v. De Baram ‘). As thesame Judges heard the appeal on that point as those before whomthe case has come in review, Mr. van Langenberg, while reserving,of course, all his rights to press the appeal in the Privy Council,did not re-argue it fully before us. He urged, however, againthat clause X. of the will itself showed that “ lawful heirs ” inclause IX. meant blood relations, and that any other interpreta-tion of clause IX. would involve the conclusion that clause X. wasredundant. The widow is, however, an " heir ” of her husbandunder the statute * ‘ law ” of the Colony. She may, therefore,properly be described as one of his “ lawful heirs. ” I do not thinkthat jlhe mere faot that the adoption of this construction ofclause IX. obliged us, if it did oblige us, to hold that there wassome redundancy in clause X. of thiB involved will would besufficient to justify us in withholding from the widow the positionconferred on her by the former clause. When the testator used thewords “ lawful heirsi ” he must be taken, I think, to have meantheirs according to the law of intestate succession.
I proceed .to deal with the other points involved in the case. Themain question is whether, under the will, the “ Synagogue ” and“ Barandeniya Cottage ” became vested in Edwin Robert, subjectto his mother’s life interest, or whether, by reason of his death inher lifetime, the gift to him lapsed in his mother’s favour.
It appears, on the face of the will itself, that the testator wasan advocate of the Ceylon Bar. He “ strongly recommends ” tothe eldest son (clause IV.) the study of the law “ as the best meansby which he can learn to be just to himself and others, and beinformed of his rights and duties to others. ” He speaks of hislaw* library, and makes provision for its being sold, In the event of
1 (1010) 2 Ctr. L. if. 99.
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his eldest son not desiring to study the law. These are intrinsic July IS, 1910
circumstances. These are disclosed to us by the will itself, and, in
spite of the argument to the contrary by Mr. Bawa, the appellants’ BxhtohJ.
counsel, I think that they entitle and require us to take account
of the fact that it is the will of a Ceylon lawyer that we are dealing diwakarav.
with. I do not. agree with Mr. Bawa that our right and duty to DeSamm
do so are affected by the fact that the will is a joint one, and speaks
with the voice of Florence Alwis as well as with that of her husband.
In the case of a joint will by a lawyer and his wife, there can belittle practical doubt as to which, of them supplied, or regulated,the legai framework for the mutual dispositions. Moreover, hereMr. Alwis is dealing, in the main, with his own properly, andspeaks throughout the will as the predominant and controllingparty. Putting ourselves, therefore, in the position of the testator,in the sense that I have just indicated, we have .to consider themeaning and effect of the provisions summarized above. Mr. Bawaargued (1) that clause VI. in any event conferred immediate giftson the devisees; (2) that the word “ vest ” in clause VII. did notnecessarily import a gift of the dominium; (3) that the factthat clause VII. dealt with the specific devises created by clause VI.and also with properties Nos. 17—40, in which the testatrix clearlytook only a temporary interest, and, while prohibiting her fromselling or otherwise alienating properties Nos. 1-16, expresslydeclared that she should “ have a life interest .therein, ” showedthat no transfer of the dominium to the testatrix was intended;
(4) that this view was strengthened by the fact that clause VIII.deals particularly with “ inheritance, ” and provides for the vestingof the properties specified in it in the testator’s children; (5) thatthe prohibition of alienation imposed upon the testatrix in clause VJI.was placed equally upon the executors, who could not be stud toenjoy .the dominium, and ought .to be regarded not as a directionto, but merely as an undertaking by, her—an undertaking exahundante cantela in order to emphasize the purely temporarycharacter of her interest; and (6) generally that under Boman-DutchLaw a gift such as we have to do with here ought to be construedas conferring a usufruct, and not the dominium.
I think that there is much primd facie intrinsic force in theappellants’ argument as to the construction of the will, and it isscarcely necessary .to observe that it was pressed upon us byMr. Bawa with great strenuousness and ability. His Lordship theChief Justice said, in dealing with the matter in appeal: “ Beadingthe whole will as it might be read by a layman, without any know-ledge of the technicalities of Boman-Dutch Law, I should have saidthat the intention was that the surviving widow should have onlya life interest in these properties. " In dealing (Samaradiwakarav. De Saram;* S. C. No. 402, D. C., F., Colombo, 26,601) with .
* (1910) 2 Cur. L. R. 104.101.
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Zufy 18,1910 the construction of clause X. of this very with I find that IWoos expressed myself a similar opinion. The point was not, however,RgNTOM J- argued before me in that case. Now that I have had theSamara- advantage of hearing full argument upon it. I adopt the view ofdiwakara v. jjjs Lordship the Chief Justice and my brother Middleton in
regard to it.
1 do not think that clause VI. did immediately vest the giftscontained in it in the devisees. The vesting of the gifts was post-poned to the attainment of twenty-five years of age by, or themarriage of the devisees. No indication is given as to what wasto happen to the property in the meantime, unless it vested in thetestatrix under clause VII., as that clause itself in fact provides. ‘It is no doubt true that the word “ vest ” does not in itself neces-sarily import a transfer of the dominium. Mr. Bawa referred uson that point to the case of Westminster Corporation v. Johnson.1(See Stroud's Judicial Dictionary, s. v. “ vest and Encyclopedia ofthe Laws of England, 2nd ed., tit. " Will,” glossary, s. v. “ Vested.”)The term has no precise equivalent in Roman-Dutch Law. On theother hand, it is clearly used in that sense in clause VIII. in de-scribing the gift of the “ Synagogue ” and “ Barandeniya Cottage ”.to Edwin Robert. Moreover, the term “ vest ” does not necessarilymean a transfer of the whole dominium (Coverdale v. Charlton *).;and, under the Boman-Dutch Law of fidei commissa, a gift ofthe dominium subject to restrictions is quite familiar to us. Thepower of sale conferred on the executors by the latter part ofclause VII. did not prevent the testatrix from acquiring, underthe earlier pari* of the same clause, the “ dominium ” in theseproperties witbin the meaning of Boman-Dutch Law, until suchtime as that power should be exercised. Although clause VII.imposes a prohibition of alienation on .the executors as well as onthe testatrix, the fact that it is so imposed upon the testatrix isa circumstance to be considered in the construction of the will.In this Colony the words “ life interest ” are frequently used asincluding the dominium. I may refer, as an illustration of this fact,to the judgment of Clarence J. in Joachinoe v: Rohertu.*
I have already dealt'incidentally with some of the authoritiescited in support of the appellants’ case. A few others, however,remain to be touched upon.
Voet, in .treating of usufruct, expresses himself as follows inregard to the effect that ought to be assigned to a prohibition ofalienation:—
“ Adhac si uxori vel alteri cuicunque datus sit usufructus rei, additaalienationis prohibitions, vel cedium usufructus sit legatus, additaelaufula., si legatarius heredi promittat, se altius eas cedes non etaturum,
1 (1904) 1K.B.26* (1878) 48 L. J. Q. B. 128
s (1890) 9 S. C. O. 101.
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vel aUud quid, quod fervitutem continet, passurum, non alia, quant July 18,1910
proprietatis plena legatee, adeoque ususfrustus causalis dot/, conjectura
capi potest; cum talis adjectio alienation is prohibits in solum cadere Renton J
possit proprietarium ususfructuario satis ex jure oommuni alienate a
impedito; et servitutis xmposxtio non per alium fieri posett, quam per dwdkarav.rei dominant, adeo ut ne socius quidem invito socio eandem rei possit Saramoommuni imponere. Utroque certe in castt, adjectio facta continetdominici juris diminutionem; nam et alienationis prohibitio minuitliberum rei arbitrium jure communi dominie concessum, et servitutisimponenda necessitas facit, ut minus plenum habeat dominium, quiservitutem imponit; ut accurate ratiocinatur Hugo' Grotius. Privatioautem preesuppoint habitum, ut vtdgo loguuntur, nec adimi potest justlominii, vel diminui ei, qui illud non habet. Nec ludere verbis volnuissetestator preesumendus est, set magis id dedisse quod clausula adjectainvolvit ex sensu communi et juris necessitate argumento legum inprcecedente qiuestione allegatarum(Voet, 7, 1, 10.)
I cannot agree with Mr. Bawa that the force of this passage isweakened by the language used by Voet in the latter part of thesame section, in which he says in effect- that such clauses aresometimes added merely through excess of caution. In the con*eluding paragraph of the section Voet reverts to his originalposition:“ But these considerations/’ he says, “ must not disturb
us: since they seek iot a certain principle and for a basis they foundon what is still at issue: for they assume that it was the intentionof the testator to leave nothing but the usufruct, from which theyargue, whether forsooth he must be taken to have intended leavinganything but the usufruct. And in the same way it can easily beretorted that it would be, on the other hand, absurd that the rightownership should be denied to the legatee, contrary to the intentionof the testator, which is sufficiently apparent—nay, 'must followof necessity, from the provision against alienation….. whichonly falls upon owners of property.”
I do not think that in a case of this description .any very greathelp is to be derived from judicial decisions based on the constructionof wills. Mr. Bawa relied on the language used by Sir Heniy deVillers in Strydom v. Strydom's Trustees,1 cited in Morice’s Englishand Roman-Dutch Law, 2nd ed., p. 318, and also in Breda v. Masterof Supreme Court,* as authorities for the proposition that the factthat a prior interest is in the nature of fidei commissum is notconclusive proof that , the tesator intended to postpone the vestinguntil the termination of such prior interest. This proposition may .readily be accepted, but it is obvious from the language used by SirHenry de Villiers that he was dealing only with the facts beforehim in the particular cases above referred to. The same observationapplies to the other cases, both South African and local, on which„1 118. C. 425*7 8. C.360
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July 18.1910 Mr. Bawa relied. See, for example, In re Zipp,1 where, by the way,the widow seems herself to have aequiessed in the view that she hadBshttok J. only on usufruct, Rahl v. De Jager,1 Nugara v. Nugara,* and EndisSamara- v" ^'6rnan^0>i where it was expressly pointed out by the Supremediwakarav. Court that if a bequest contains words of futurity, ihe question hasDe Saram ^ jje considered in view of all circumstances of the case, whetherthey were inserted for the purpose of postponing the vesting of thelegacy, or of merely deferring its fulfilment, as where the bequestto one person is made subject to a life interest in favour of another.In all these and similar cases the question arises, and has, to beanswered in the light of the special circumstances, whether theperson indicated is an usufructuary or a fiduciary legatee.
In the present case I think that the terms of clauses VII and VIII, .of the will vested the dominium in the surviving widow, with a fideicommissium in favour of Edwin Robert; that clause IX, in the sameway, created a fidei commieeum as regards the “ Synagogue ” afterthe death of Edwin Bobert, in favour of his “ lawful heirs ”, thaton the death of Edwin Robert the ” Synagogue ” became subjectin the hands of the textarix to a fidei commissum in favour of hislawful heirs; and that for the reasons already given the firstplaintiff-apellant is one of those heirs.
On these grounds I would affirm -the judgment of the SupremeCourt in each of the appeals now before us with costs.
* (1893) 3 0. L. R. 35* (1905) 9 N. L. B. 77
*(1878) Juta L. C. 126
(1680) Juta L. C. 166