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Present: Lord Shaw, Lord Mersey, Lord De Villiers,and Lord Robson.
SAMARADIWAKARA et al v. DE SARAM et ahD. C. Colombo, 26,602.
Joint will—Fidei commissum—Usufruct—Widow is “ lawful heir.”
The joint will of James Alwis and his wife Florence, who were,married in community of property, provided that, in the eventof the testatrix surviving the testator, certain properties shouldvest 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 on the death of the testator the dominium of theproperties passed to Edwin Robert, subject to a life interest inFavour of the testatrix.
The joint will further provided that with respect to certainspecified properties that they should not be 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 virtueof section 26 of Ordinance No. IS of 1876.
PPEAL from. a judgment of the Supreme Court of Ceylon(see 13 N. L. R. 353).
Dornhorst, K.C. and De Gruyther, K.C. (with them R. W. Lee),for De Saram et at.
Lawrence, K.C. (with him H. E. Miller), for Samardiwakara et al.
July 21, 1911. Delivered by Lord Db Villiers :—
The main question to be decided in this appeal is whether on hisdeath, which took place in 1882, Edwin Alwis had acquired such aninterest in certain bequests made to him by the joint will of hisparents as was capable of being and was transmitted to his heirs.The will was made on April 27, 1878, by James and Florence Alwis.who were married in community of property. It contained severalclauses under distinct headings. By the 6th clause, under theheading "Ad interim provision for the children,” bequests of movableand immovable property were made to several of the testators’
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children upon their respectively marrying, or attaining the age oftwenty-five years. By the 7th clause, under the heading “ Provisionfor the testatrix is she survive the testator,” the testators declare :u It is our will and desire that all the above movable property asabove settled, and all the immovable property until they shall betransferred as above directed, and the other following lands andhouses, shall be vested in me, the testatrix, subject to the under-mentioned conditions.”- Then follows a list of such lands andhouses, the third on the list being the “ Synagogue ” in Colpetty, andthe fourth being ” Barandeniya Cottage ” in Colpetty. The testatorsthen direct as follows : “ Our executors shall not sell or otherwisealinenate the first sixteen lands and premises hereinbefore mentioned(including the 6 Synagogue * and Cottage), nor shall I, the testatrix,have the power to sell or otherwise alienate the same or any of them,but I shall have a life interest therein;” Under the 8th heading,
” Inheritance upon the death of both of us,” the testators gave thefollowing among other directions : “ The ‘Synagogue* and ‘Baran-deniya Cottage* in Colpetty to vest in Edwin.” By the 9thclause, under the heading “ Restrictions on the above inheritance,”the testators direct that certain of the premises, including the‘‘ Synagogue,” shall not be sold, or in anywise alienated orencumbered, but shall devolve respectively on the lawful heirs of theabove-named devisees ; in the absence of any such lawful heirs, onthe persons whom we institute heirs or his or her lawful heirs.”The 10th clause contains an institution of heirs, of whom Edwin is one.The testator died in 1878, and the testatrix in 1907. After the deathof the testarix, the first plaintiff, as the surviving spouse of Edwin,instituted an action in the District Court of Colombo, assisted byher second* husband, the second plaintiff, to have it declared that,as heir ab intestato of her deceased husband, she was entitled toundivided half shares in the- ‘‘ Synagogue ** and the Cottage. TheDistrict Court held that Edwin, on his death, transmitted no rightsunder either bequests to his heirs, and accordingly dismissed theplaintiffs action. On appeal the Supreme Court of Ceylon upheldthe judgment of the District Court as to the Cottage, but declaredthat the first plaintiff was entitled to a half share of the “ Synagogue,*’with damages at a rate agreed upon by the parties. The presentappeal is brought by the plaintiffs as to the Cottage, and there is across-appeal by the defendants, who represent the estate of thetestatrix, as to the ‘‘ Synagogue.”
No question arises in this case as to whether or not the provisionsof the joint will were binding on the testatrix after her husband’sdeath. They had been married in community of property, and itwould have been quite competent for her, on her husband’s death,to repudiate the will, so far as it affected her half share of the jointestate. It is common cause, however, that she . elected to takebenefits under the will and to abide by its provisions. After adiatioq
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on her part she could not deprive any of the beneficiaries of rightsaccruing to them under the will, even in her lifetime. By the 6thclause, for instance, of the will some of the children were to receivemoney and estates on their respectively attaining their twenty-fifthyear. The testarix could clearly not have prevented these bequestsfrom taking full effect upon any of the children attaining that ageduring her lifetime. The ground upon which the Supreme Courtdecided against the plaintiffs on their claim for the Cottage was notthat the testatrix was unable by will to confer rights to take effectduring her lifetime, but that, according to the legal construction ofthe will, no such rights had been conferred on Edwin. The learnedChief Justice, in his carefully considered reasons, says : “ The willcan hardly be said to use any technical terms of Roman-Dutch law,it institutes and appoints heirs to the residuary estate, , but it alsoappoints executors ; it says on the one hand that the widow shall notalienate the property, words which are meaningless if she has onlya life interest, and on the other hand it says that she is only to havea life interest, and those words are unnecessary if the intention thatshe should have the dominium subject to a fidei commissum issufficiently expressed. Reading the whole will as it might be readby a layman without any knowledge of the technicalities of Roman-Dutch law, I should have said that the intention was that thesurviving widow should have only a life interest in those properties.”Thus far their Lordships entirely agree with the Chief Justice, buthe then proceeds thus : “ I cannot get over the facts that theRoman-Dutch law as to fidei commissa is in force in Ceylon, andthat the testator was a Ceylon lawyer, and that the terms ofclauses 7 and 8 of the will appeared to vest the dominium in thesurviving widow with a fidei commissum in favour of Edwin Robert,and that clause 9 in the same way creates a fidei commissum as toone of the houses, after the death of Edwin, in favour of his heirs ”.The Chief Justice does not quote the authority which forces him tothis conclusion, but it is clear from the reasons of Mr. Justice WoodRenton that the Supreme Court was mainly influenced by a passagein Voet’s Commentaries (7, 1, 10) to the effect that where a usufructis bequeathed to a person with a prohibition against alienation, theintention should be presumed to be to confer on him full ownership.As there can be no question of a person who is not the owner ofproperty alienating it, the presumption, according to Voet, is thatwhere a testator prohibits a legatee from alienating propertybequeathed, the intention is to make him the owner. It is not,however, more than a presumption, and there is nothing in thepassage to show that the presumption must prevail, if there areother indications of a different intention on the testator’s part. Inthe present case the testators took pains to emphasize the limitednature of the interest intended to be conferred on the survivingwidow, It is true that the will does pot say that she shall have
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“ only ” a life interest, but the Judges in the Court below wereconstrained to come to the conclusion that this is what was meant.
If the word “ only ” had been used, there would have been no doubtthat a bare usufruct and not dominium was intended to be conferredon the testatrix. The fact that it was not used should not, in theirLordships’ opinion, be allowed to frustrate the real intention of thetestators. It does not appear that the surviving widow ever claimedthe dominium even after the death of Edwin. When she came tomake her separate will she treated all the properties bequeathed bythe joint will as no longer belonging to her, and disposed only ofsuch assets as were not included in the bequests given by the jointwill. She may, of course, have been ignorant of her rights, butif there be any doubts as to the intention of both testators, herconduct, after the death of her husband and of her son Edwin,cannot be entirely ignored.
As a further reason for holding that ownership and not usufructwas intended to be conferred on the testatrix, it has been urgedbefore their Lordships that the use of the word “ vested ” in the7th clause, and the word “ vest ” in the 8th clause, is inconsistentwith any intention to confer a vested interest on Edwin before hismother’s death. If the words were used in their strictly technicalsense there would be much force in this contention, but they seemto have been used in a somewhat loose sense, as indicating thetime when the enjoyment of the properties, whether temporary orpermanent, was to have its commencement. The learned ChiefJustice laid stress on the fact that the testator was a Ceylon lawyer,but under the Roman-Dutch system the word “ vest ” would nothave the same definite and intelligible meaning as it would haveeither in England or in Scotland. Even under the English law theword would not necessarily import the transfer of ownership, for,as was said by Willes J. in Hinde v. Chariton,1 “ there is a wholeseries of authorities in which words which in terms vested thefreehold in persons appointed to perform some public duties, suchas canal companies and boards of health, have been held satisfiedby giving to such persons the control over the soil which was neces-sary to the carrying out the objects of the Act without giving themthe freehold.” In Stracey v. Nelson1 it was provided by an Act thatcertain lands should be vested in the Commissioners of Sewers, butthe Court held that only the control over the land and not the free-hold passed to them. From the Scotch cases cited in M’Laren'sLawsof Wills and Succession (2, p. 805), it would appear that in Scotlandalso the use of the word “ vesting ” is not conclusive that it wasused in its strictly legal sense. Among the cases cited is Crooni’scase,3 where it was said that the appointment of an express clauseof vesting is “ a very doubtful remedy ” for the inconvenience thatsometimes arises from the difficulty of determining vesting upon
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legal principles. The phrase used in Roman-Dutch law to indicatethat a thing has begun to be owing, the right to which is thereforetransmissible; is dies cessit as distinguished from dies venit, whenthe time for enjoyment has arrived, and the thing can be claimed(see Voet 36, 2, 1). Where the condition of a bequest is thatthe legatee shall survive a person having a life interest in the thingbequeathed, no transmissible interest accrues to such legatee unlessthe condition of survivorship is fulfilled. Their Lordships are unableto concur in the view that the use by the testators of the word“ vesting ” indicates an intention to impose such a condition on thebequest made by them to their son Edwin. It so happens that he leftno children to whom any part of his interest could be transmitted, butthe testators had no reason, during their joint lifetime, to supposethat he would die childless. If he had died after his wife, leavingchildren by her, it would have been difficult to infer from the useof the word “ vest ” that the children were intended to be excludedin the event of his dying before his mother. The circumstance,however, that his wife survived him and thus became one of hisheirs should not be allowed to affect the construction of the will.
As to the heading of the 8th clause of the will : “Inheritanceupon the death of both of us,” upon which great stress was laid inthe arguments before their Lordships, it does not carry the mattermuch further. It indicates that the devolution of the inheritanceafter the death of both the testators is dealt with in that clause,but it cannot be construed as meaning that no transmissible interestshould be acquired by the heirs mentioned in the clause until afterthe death of both the testators.
Nor is the case for the defendants assisted by the 9th clause ofthe will, which directs that the “ Synagogue ” “ shall not be sold orin anywise alienated or encumbered, but shall devolve respectivelyon the lawful heirs of the above-named devisees.” The onlydifference between the bequest of the “ Synagogue” and the bequestof the Cottage is that in the case of the former Edwin wouldbe restrained, after coming into possession, from alienating the“ Synagogue,” whereas in the case of the Cottage no such restrictionis placed upon his rights of ownership. It was rightly held by theSupreme Court that the effect of such restraint would be to imposea fideo commissum on him in regard to the “ Synagogue ” in favour ofhis heirs ab intestato, but it does not follow that such heirs acquiredno rights in respect of the Cottage. He is referred to as one of thedevisees, and if he was a devisee of the “ Synagogue,” he was also adevisee of the Cottage, the right to which he could transmit to hisheirs. The Supreme Court, reversing the judgment of the DistrictCourt in this respect, held that the heirs of Edwin are entitledunder the 9th clause of the will to claim the “ Synagogue,” but thejudgment of the District Court as to the Cottage was upheld. Inthe opinion of their Lordships* however, the rights of Edwin’s heirs
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to the Cottage are not affected by the difference between thedirections as ^o the “ Synagogue ” and the directions as to the Cottage.If Edwin had come into possession Of the “Synagogue,” he would nothave been entitled to alienate it, but in regard to neither propertywas there any intention to do more than postpone the operation ofthe bequest
In this view of the case it is unnecessary to express any opinionas to what the decision would have been if it had been found thatthe effect of the will was to create a fidei commission, and not toconfer a bare usufruct on the surviving testatrix. Their Lordshipswould, however, make this observation, that, although there is apresumption, in the case of a fidei commissum, that a testatorintended the fidei commissary legatee to have no transmissiblerights unless he survives the fiduciary legatee, such presumptionwould have to yield to other clear indications in the will of anintention to the contrary.
The question still remains whether the first plaintiff, as thesurviving spouse of Edwin, is entitled to any share in the propertiesbequeathed to him. Under the Roman-Dutch law she would nothave been one of his heirs ab intestato, but the 26th section ofthe Ceylon Ordinance No. 15 of 1876 enacts that “ when any personshall die intestate as to any of his or her property, leaving a spousesurviving, the surviving spouse shall inherit one-half of the propertyof such person.” It is clear from the 25th and subsequent sectionsthat the object of that portion of the Ordinance was to regulatethe course of intestate succession, and to fix the shares to whichthe heirs ab intestato should be respectively entitled. It was saidby the Judge of the District Court that a person cannot be thewidow of two persons at one and the same time, but the first plaintiffclaims to be an heir of her first husband, not as being his widow,but as being his surviving spouse, and she remains such survivingspouse whether she has re-married or not. Her rights as one ofhis heirs accrued at the time of his death, and, as the Ordinancedoes not make it a condition that the surviving spouse should notre-marry, she is not prevented when the time for the postponedenjoyment has arrived—dies venit—from asserting her right as one ofhis heirs ab intestato. Their Lordships will, therefore, humbly adviseHis Majesty that the appeal against the judgment, so far as itaffects the Cottage in Colpetty, Colombo, should be allowed ; thatthe defendants’ cross-appeal should be dismissed ; and that the firstplaintiff should be declared entitled to an undivided half share ofthe Cottage as well as of the “ Synagogue,” and to damages at therate agreed upon by the parties. The costs of the appeal, and thecosts in the Courts below, will be borne by the defendants.
Plaintiffs' appeal allowed.Defendants' appeal dismissed.
SAMARADIWAKARA et al v. DE SILVA et al