135-NLR-NLR-V-51-SENEVIRATNE-Appellant-and-SENEVIRATNE-et-al.pdf
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Smevirutne v. Scnevimlnc
1950Pres&nt: Dias S.P.J. and Swan J.SENEVIKATNE, Appellant, and SENrEVIRATNE et al..
Respondents
S. C. 15—D. C. {Inly.) Colombo, 551
yidcirommissum created by will—Povxr of appointment of ftdticommissary conferredon fiduciary—Such jxnce.r must be exercised within the limits imposed bytestator.
Ia a fidotcomioisaiun created by will tho testator may empower the fiduciaryto nominate the fideicojnmissury, but tho oxercise of suc() powor of appointmentmust be closely examined to ascortain wliethor the fiduciary has acted within(lie strict limits of the mandate imposed on him.
^.PPEAI, from a judgment- of the District Court, Colombo.
In a fideicommissum created by will (Pi) the testator devised certainproperty to his six children as fiduciaries. One of the clauses in the willprovided that if a fiduciary died without leaving children his (or her)share should devolve equally upon his surviving brothers and sisters,but he was, in such a case, given the power to appoint by will “ any oneor more of my other children upon the same conditions and restrictionsas are herein contained or to any one or more of the issue of any deceased •child of mine upon such conditions and restrictions as he or she shall deemfit and proper, or without any condition or restriction whatsoeverFlorence, one of tho fiduciaries, died without issue in 1930. By herlast will (P2) ahe devised to her sister Adeline and brother Granvilleher ^.th share absohilely and not subject io “ the same conditions andrestrictions” as were contained fit the will PI. One of the questionsfor decision in this appeal was whether, by the exercise of the power ofappointment in this way, Florence acted ultra vires and whether herappointment was therefore void and of no effect.
H. V. Perera, K.C., with P. Navaratnarajah and A. Nagendra, for peti-tioner appellant.—Hendrick Seneviratne by last will Pi devised to hissix children, inter alia, the property in question subject to a fideicommis-suam in favour of his grandchildren. The last will PI further provided thatif any child of the testator died issueless, the share of such child shoulddevolve equally on the testator’s other children and issue of any deceasedchild, the latter taking per stirpes. A child of the testator was alsogiven a power of appointment by which such child could exercise thatpower of appointment by last will and give such child’s share to anyoneor more of the otherehildren “ subject to the same terms and conditions’ ’as contained in the testator’s will or to any issue of a deceased childabsolutely. The last will PI also provided that any shares bequeathedto the children under the ordinary clause of tho will or which thechildren might inherit in any other manner under will should be heldby the children under the conditions and restrictions mentioned inthe will PI. Florence, one of the children of the testator, died withoutissue, leaving a last will, P2, hv which she bequeathed one half of theproperty in question to her brother Granville absolutely. Granville24Li
1—J. N. B 12sJ;l-1,010 (0/50;.
!3.")4.s’cnmra*u« v. Senci-iratnc
in his osvn right possessed one-sixth oi the said property under PI.He diod intestate without issue, and his interests devolved on hisbrothers Irwin and Vincent and bis sister Adeline. Tho petitioner-appellant’s case is that tho shares which Vincent inherited throughGranville arc free of any fidoicommissum. Tho share which Vincentobtained through Granville can be classified under two heads. Granvillegot £ of £ under Florence’s will P 2 and Vincent thus got £ of this £ of
namely, 1/36. Granville’s own •£ also devolved on Adolino, Irwinand Vincent, and Vincent thus got £ of As regards what devolvedon Granville under the will P2, it did not devolve under the father’swill PI. When a power of appointment is exercised by last will theperson appointed takes under the will of the donoo of the power andnot under the will of the creator of the power. See Jackson v. Commis-sioner of Stamps1 and Madras and Southern Mahratta My. Co. v.Bezicada Municipality2. As regards tho $ of } which Vincent obtainedfrom Granville directly, this is not a share bequeathed to Vincent underthe will P1 and thoreforo is not subject to any conditions andrestrictions created by PI. Both shares in Vincent’s hands aro thusfree of any fidoicommissum.
Kingsley Herat, for respondents.—Under tho Homan Dutch law apower of appointment can be created only by way of a fideicointnissum.The donee of the power is the fiduciary, and the persons selected bytho donee of tho powor aro tho fideicominissnrie® under tho will of theoriginal testator or creator of tho fidoicommissuin. The persons takingundor tho power and selected by the donee of tho power are thefideicoimniBgcry heirs of tho original testator—Steyn on Wills (1035 ed.),p. 237 ; Nadaraja on Law of Fideicommissa, p. 57 ; Union Government v.Olivier3. Thus, what Granville obtained under Florence’s will P2,he obtained as an heir of the original testator under PI. A power ofappointraont must be strictly exorcised. Florence exceeded the contentof the powor given her and acted ultra vires in giving her share absolutelyunder P2. This amounts to a non-exercise of the power—Nadaraja,op.cit.,pr>9a»d&feytt,p.240. Thorcsultisthattheconditionalfideicommis-sum created by PI operates, and as Florence died issueless her sharedevolved on Granville and the other surviving brothers and si6tors. OnGranvillo’s death issneless,his shares devolved in terms of the hist will V 1on Vincent and Irwin and Adeline. Thus, the share devolving onVincent in either ease devolves on him by virtue of the provisionsof PI and, therefore, is subject to the conditions and restrictionscreated by PI. See also Lindsay’s Estate v. McBride’s curator* andWestminster Bank, Ltd. X. 0. v. Zinn X. 0. 5.
H. V. Perera, K.C., in reply.—There is a distinction between a modusand a condition. Modus is a limitation of estate and not a truecondition. PI deals with a modus and not a condition. The will P2does not infringe any condition. See Perezius on Donations(Wikramanayake’s Translation), p. 24, and Nadarajah on Fideicommissa,pp. 50-51.
Cur. adv. mtU.
» {1903) A. <:. 8;>0.* (J9I6) A. D. at p. 89.
1 A. 1. H. {1944) F. C. 71.*{1939) A. D. at p. 435.
*■ {1935) C. F. D. 157.
I)IAS S.P.J.—Sensviralne v. Sewviralnt
55 o
July 13, 1950. Dias S.P.J.—
One G. A. Don Hendrick Sencviratne died leaving six childrenAdeline, Granville, Irwin, Edmund, Florence and Vincent. The lastnamed is the petitioner-appellant. The 1st respondent is the son of theappellant while the 2nd respondent is his wife.
By his last will PI, G. A: Don Hendrick Seneviratno (hereafter referredto as “ the testator M), having made certain specific devises and bequeststo his six children, dealt with the rest and residue of his proporty in thefollowing terms :—
“ I hereby give doviso and bequeath all the rest and residue ofmy property and estate, real and immovable aud personal andmovable whatsoever and whorosoover of every kind and description,whether in possession cxpoctancy reversion remainder or otherwise,to my six children Adeline, Granville, Irwin, Edmund, Florenceand Vincent share and share alike
He then gave certain directions regarding a mortgaged property andproceeded to provide as follows :—
“ I hereby will and direct that my six children Adeline, Granville,Irwin, Edmund, Florence and Vincent shall have and hold all thoimmovable properties and the shares in tho immovable propertieshereby specifically bequeathed to them, and the shares in the immo-vable properties bequeathed to them and under the residuary clausehereof, and which they or anyone of them may inherit in any othermanner under this my will, subject exprosslv to the conditions andrestrictions following, that is to say—
That no child of mine shall mortgage, sell, or otherwise alienateor encumber save as hereinafter provided any one or more of theimmovable properties or any part or portion thereof or any share insuch immovable properties, hut such child shall only be entitled totake receive and enjoy the rents and profits and income thereofduring his or her life. Any such mortgage or other alienation shallbe absolutely null and void, but this restriction shall not preventsuch child of mine from leasing to any person or persons any of thesaid immovable properties for a period not exceeding two years at atime, and I hereby direct that a lease executed by a majority of mysaid children of any immovable properties held by them in commonshall be good and valid and shall be binding on any of the childrenwho shall refuse or neglect to execute the same when requestedthereto by the majority ofthem, without prejudice however to theright of the dissenting minority to their respective shares of therent reserved by such lease. Provided however that any leaseexecuted during the continuance of a lease shall be absolutely nulland void.
On. the death of any child of mine the immovable propertiesand all properties and all shares therein devised to him or her here-undor shall devolve on his or her issue or any one or more of them assuch child by last will appoint, and subject to such conditions andrestrictions as such child shall deem fit and proper or without any
556
DIAS S.P..J.—Seneviralnt v. Scneviratne
condition or restriction whatsoever, and in the event of any child ofmine dying intestate without such appointment as aforesaid, then, thesame shall devolve absolutely on his or her issue, equally betweenthem of more than one, subject oxpressly to the rights of the spouseof such deceased child of mine as hereinafter provided.
In the event of the death of any child of mine without leavingissue living at the time of his or her death, such immovable propertiesand shares therein devised to him or her hereunder shall devolveequally on any of my other children and the issue of any otherdeceased child of mine, suoh issue taking by substitution per stirpesand equally between them if more than ono the share which his orher or their parent would have taken had such a parent beon alive atthe time of the death of any such child of mine. Provided howeverthat any child of mine dying without issue shall have the right to-give and grant any such immovable properties and shares thereinor any of them by last will only to any ono or more of my otherchildren upon the same conditions and restrictions as are heroin con*tained or to anyone or more of the issue of any deceased child of mineupon such conditions and restrictions as he or she shall deem fit andproper or without any conditions or restrictions whatsoever, butsubject oxpressly to the rights of the surviving spouse of suchdeceased child of mine os hereinafter provided.”
Florence died without issue in 1930. By her last will P2 she devisedinter alia her ^th share of certain properties she inherited under the willPI—half to her sister Adeline and half to her brother Granville absolutely.Granville died in 1944 intestato and without issue. Edmund died in1943 without issue and leaving no spouse. Adeline is also dead, butnothing flows from that. The only children of the testator surviving attho material dates aro Irwin and Vincent the appellant. In this appealwe are only concerned with Vincent.
Vincent claims from three sources, (a) He inherited £th under thewill PI of his father the testator. Thero is no dispute about that share.(6) He claims $rd of the half of Jth which Florence by her will i*2purported to devise to her brother Granville, (c) He also obtained &rdout of the £th which his brother Granville inherited under the testator’swill PI. A dispute has now arisen between Vincent on the one handand his son and wife on the other in regard to (6) and (e). Does Vincenttake those shares absolutely, or does he take them subject to &fideicommissum ? The point is that tho land has been sold under the Entailand Settlement Ordinance (Chapter 54), and is now represented by afund of money in Court. Vincent wants to draw his share of (6) and (c).His son and wife oppose that.
It is common ground that the will PI creates a valid fideicommissum.The question is as to its scope and extent. The learned District Judgehas refused the application of the appellant to draw the money, holdingthat it is subject to a fideicommissum. Both sides are agreed that hiejudgment is not very helpful.
DIAS S.P.J.—Seneviratne v- Seneviratne
567
This jideicommiemm is one which has been created by will. Thereforethe guiding principle in construing its provisions is to ascertain theintention of the testator by a consideration o! the will as a whole.
With regard to the $ of $ of Granville, Mr. H. V. Perera confessedthat there are two views possible. Granville, being one of the sons of thetestator, inherited £ under the will PI. He died issueless and left nowife. Therefore, his £ devolved on his surviving brothers and sistersand Vincent obtained £ of The question is whether Vincent takesthis absolutely or subject to a fideicommiesum.
The clause in the will PI immediately preceding the three conditionsdeals with three kinds of property, namely, (a) the immovableproperty and the shares of immovable property thereby specially be-queathed to the six children, (b) the shares in the immovable propertybequeathed to them under the residuary clause, and (c) “ which they orany of them may inherit in any other manner under this my will ”. Thatwhole .clause is made expressly subject “ to the conditions andrestrictions following”, quoted above verbatim. Those conditions andrestrictions summarized are (1) a prohibition against alienation, (2) thaton the death of a child of the testator the “immovable properties and allproperties and all shares therein devised to him or her hereunder ” areto devolve on his or her issue subject to a power of appointment to thatchild by last will to select which of his or her children are to get that share,and if the child of the testator should die without making such an appoint-ment, the share is to vest equally and absolutely in his or her issue. Thissecond condition does not applybecause Granville died without issue. (3)If a child of the testator died without issue, that share is to devolve on thesurviving children of the testator or the children of a deceased child of thetestator in equal shares, but it is provided that such a child shall havepower by last will to appoint that his share is to go to one or more of hissurviving brothers and sisters “ upon the same conditions and restrictionsas are herein contained ”,
In construing this will we must pay careful attention to what the tes-tator intended, if it is possible to do so. I agree with Mr. Perera that thelaw favours free inheritance, and that where there are two viewpointswhich are evenly balanced, the Court will incline towards that view w'hichgives free inheritance. I would add, however, that the Court must alsopay strict regard to what it was the testator intended should happen.
Mr. Perera argues that Granville inherited this £ share subject to afideicommissum. He died intestate and without issue. Under the termsof the will his £ share thereupon devolved upon his three survivingbrothers and sisters including Vincent. He acquired that $ of | undercondition 3 which provides that on the death of Granville without leavingissue living at the time of his death the immovable property devisedto him “hereunder”, i.e., under PI, shall devolve equally on the tes-.tator’s other children. The proviso to condition 3 does not apply toGranville’s case. There is no condition or restriction imposed on thechildren who inherit under Clause 3 from a deceased child. Therefore,it is urged that Vincent got his £ of £ free and absolutely. Mr.Perera points out that, although condition 1 imposes a fetter on the right
5S8
DIAS S.P.J.—Xenevirutne v. Svntviratne
of Vincent to alienate, there is no indication as to who is to benefitshould Vincent commit a breach of that prohibition. lie, therefore,submits that condition 1 so far as this £ of $ is concerned is void.
Mr. Herat argues that the intention of tho testator is clearly mani-fested in the main clause which precedes the three conditions. Granvilleobtained his share under the residuary clause of PI. The clause whichprecedes tho three conditions provides that the shares in lands bequeathedto the children under the residuary clause “hereof ” and “which theyor any of them may inherit in any other manner under this my will ” are tobe subject expressly to tho conditions and restrictions folloioing. Thosowords must be given a meaning. It cannot be denied that Vincentobtained this f of £ by reason of the provisions of the will PI.Therefore it seems to be clear that the testator intended by his willto provide for the socond generation of his progeny. I, therefore, boldthat Vincent holds this } of $ subject to the conditions and restric-tions imposed by tho will, and not absolutely.
With regard to the $ of 1 /12 which came to Vincent via Florence andGranville, under the testator’s will Pi, Florence obtained | burdenedwith a fideicontmissum in favour of the children of Florence with powergiven to her to appoint one or more of them as she by last will mayappoint, either with or without conditions which she may impose.Florence had no children. Therefore, that provision (condition 2)did not operate. Tho testator by PI also imposed a conditional fidei-commissum by condition 3 to the offset that if Fioronce died withoutleaving children, her £ share should devolve equally upon her survivingbrothers and sistors, but she was, in such a case, given tho power toappoint by last will “ anyone or more of my other children upon tho samoconditions and restrictions as are herein contained, or to any one ormore of tho issue of any doceased child of mine upon such conditions andrestrictions he or she shall doem fit and proper, or without any conditionor restriction whatsoever
It will be seen that in exercising her power of appointment under thoproviso to condition 3, Fioronce could do one of two things—(a) appointby last will one or more of her brothers and sisters upon the same con-ditions and restrictions as are contained in the will PI, or (b) if shoappointed a child of a deceased child of the testator, Florenco could givethe share absolutely, i.e., freed from the fideicommissum, to that child.The testator by that clearly intended that while the second goncrationwould be free, the first generation, i.c., his children, should be fettered.
Florence by her will PS purported to exercise her power of appoint-ment in favour of her sistor Adeline and brother Granville, but she do visedher £ skaro absolutely and not subject “ to the same conditions andrestrictions ” as aro contained in the testator’s will PI.
Mr. H. V. Porera for the appellant argues that that makes no difference.Mr. Herat for the respondents submits that it makes a great difference,as by tho exercise of tho power in this way Florence was acting ultravires of her powers under PI and her appointment is therefore void andof no effect.
559
DIAS S.P.J.—Sensviratne c. Senemratne
Stoyn in his treatise on Wilis (page 237) says: “A testator may delegate,appoint or empower a thirdporson to nominate his heir or legatee, or hemay confer upon a beneficiary to whom he has bequeathed a limitedinterest in his estate or portion thereof, the power of selecting the personor persons on whom it shall devolve at the expiration of such limitedinterest, or of fixing the shares of, or of determining the maimer of distri-bution among tbe beneficiaries, whether named individually or as aclass. Such a power of appointment can only be exorcised by way of afideicommissuin, the person to whom the power of appointment is givenis the fiduciary, and the persons selected from those named by the testatorare the fideieomraissaries under the will of the testator. The exerciseof a power of appointment has the same effect as if the testator hadhimself made the selection in his will, and the persons nominated underthe appointment are, therefore, the heirs or legatees of the testatorand not of the person who exercised the power ' In his helpful andilluminating work on the Law of Fideicommissa Mr. T. Nadaraja saysat page 57 : “Thus.it is open to the testator to leave to the fiduciary thetask of deciding who are to be the fideieommissaries by giving thefiduciary what would in English Law be called a ‘ power of appointmentThis so-called power of appointment can under our lav/ be created onlyby way of u fuleicommissum, so that the heir or legatee to whom thepower of appointment is given is the fiduciary, and the persons selectedfrom those named by the testator are fidoi commissaries under the willof the testator
In Westminster Hank Ltd. v. Zinn 1 Ctirlwis C.J. said ; “ When I usethe words ‘ power of appointment ’ in connection with the will ….I am using a phrase well known to English Law …. but wemust guard against the use of that phrase in connootion with SouthAfrican wills in any other sense than as referring to tho right or mandatewhich a fiduciary has under our law* to perform an act of testamentarydisposition on behalf of another person, i.o., the person who createdthat right or gave that mandate …. Our law does not make anydistinction, as apparently the English Law does, between a generalpower of appointment and a special power of appointment”. InUnion Government v. Olivier2 Juta J. said: “Such a power of appointmentcan only be exercised in our law by way of a fidei-commissum, ho that theheir or legatee to whom the power of appointment is given is the fiduciary,and the persons selected from those named by the testator are the fidei-commissaries under the will of tbe testator”—see also WestminsterBank Ltd. N.O v. Zinn N.O 3.
In his work on the Law of Fidcicommissa, Mr. Nadaraja says at page50: “ Where there is a valid power of appointment conferred eitherexpressly or by implication on a fiduciary, and the latter duly exercisesthe power, the persons nominated by him become, as from the date whenthe instrument of appointment takes effect, the bcjrs or legatees of tbeoriginal testator who conferred the power in just the samo way as if thetestator had himself nominated them in his will. But—for the exerciseof the power of appointment to he valid, the fiduciary mn-st art within the
1 [1938) A. T). 57.» (1916) A. 1), at p. 89.
1 (1935) C. P. D. at p. 157.
560
DIAS 8.H.J.—Seneviratne r. Seneviratne
limits imposed upon him. For example—if the mode of exercise of thepower is restricted to appointment by will, an appointment by deed wouldbe invalid, and vice versa1; or whore the fiduciary appoints from outsidethe class designated by the testator, the appointment would be invalid,as will also be the case where a condition is attached to the exercise ofthe power aud the power is exorcised without the condition being satisfied.Again, it must be clearly established that the fiduciary acted in pursuanceof the power, so that, for example, a mere general devise by (he fiduciary'swill will not be considered as comprehending property subject to a powerof appointment, unless there is some reference, express or implied, to thesubject of the power itself, or some circumstance exists from which- it can beinferred that an exercise of the potver kas taken place. If there has beenno exorcise of the power at all, or it has not been properly exercised, thosepersons whom the testator designated as beneficiaries in the event ofnon-oxeroiso of the power will succeed
In Lindsay's Eslatev. McBride's curator5 Sutton J. said : “ The granteeof a power of appointment must exercise his or her powers within the limitsof those conferred upon him. According to Haisbury’s Laws of England(Vol. 23, pp, 40-50) where there is a complete execution of a power andsomething added which is improper, the execution is good and the excessbad, where there is not a complete execution or where the borders betweenthe excess and the execution arc not distinguishable, the whole appoint-ment fails ”, It is a question whether tlio learned Judge was justifiedin importing principles from the English Law in order to construe powersof appointment under the Roman Dutch Uir, in the light of what wassaid in Westminster Bank v. Zinn *. Even assuming that the EnglishLaw rule applies, f do not think Florence completely exercised the powerand added something which is improper. Under FI the mandate waaif she had no issue, thatshe could by last will select oncof the other childrenof the testator and give to them her share “ upon tho same conditions andrestrictions as are herein contained That is what she did not do.
I have carefully examined the will of Florence—P2. In the dansewhere she devises to her sister Adeline and to her brother Granvilleabsolutely, there is no reference whatever to her power of appointment.Furthermore, I am of opinion that Florence was not acting within thelimits imposed by the testator in FI when sho purported to give the pro-perty to Granville absolutely. It was in direct defiance of the testator’sdirections.
Mr. H. V. Perera citing Perezius on Donations (Wickremanayake’stranslation) p. 24, argued that the relevant clause in tho will P) did notimpose a condition but only a modus or limitation. The question isfully explained in Nadaraja's Law of Fiddcommissa at pp. 50-51. Re-garding the will Pi as a whole and having regard to the intention of thetestator, I am unable to agree that this injunction was one which Florencecould ignore.
t See Kodija Vnxmat>. lietra Lebbe (1903) 7 N. L. R.ot pp S7-tS. Ambonietv.
Barton (J903) 7 AT. L. H. at p. 4$.
» {1939) A.D.otp. 433.
{1933) A. D. 37.
561
Don Philip IlUjn^urohu
Therefore, in my view. then* not u complete execution of herpower or mandate, arid fliv whole appoint meut, in consequence, fails.Steyn says (at p. 240} “ The grantee roust exercise his powers within thelimits of those conferred upon him. Tf ho exceeds or executes themimproperly, the result is the same as if he had not executed them at all *In my opinion the exercise of a power of appointment must be closelyexamined to ascertain whether the fiduciary has acted within the strictlimits of the mandate imposed on him or her. Assuming that Florenceexercised her power of appointment correctly and properly, thenGranville took under Florence’s will Pi’ aa the heir, not of Florence,but of his father the testator. That being so, he comes within the clausewhich precedes condition 1 of the will and takes "subject expressly tothe conditions and restrictions following”, i.e., under condition 1 heis prohibited from alienating, and under condition 3 on his death withoutissue the share will devolve on his surviving brothers and sisters includingVincent. I hold, however, that Florence did not validly exercise herpower of appointment. Therefore, on her death without issue Vincentwould inherit under PI subject to the fideicommissum.
I therefore affirm the order appealed against with costs.
Swa>' J.—I agree.
Appeal dismissed.