044-NLR-NLR-V-16-SENEVIRATNE-v.CANDAPPAPULLE-et-al.pdf
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1912.Present: Lascelles C.J. and Wood Benton J.
SENEVIKATNE v. CANDAPPAPULLE et al.
139—D. G. Colombo, 32,388.
Last will—Fidei commissum—Jus aporescendi—Construction of lastwill — General rules as to interpretation are unsafe guides —Intention of testator true criterion.
The testators by their joint will bequeathed to their two sons, Xand Y, the property in dispute, and made separate devises in favourof each of his five daughters. The will further contained a devise ofone property in favour of all the five daughters, and a devise ofanother property to all the children. The will provided that the“ properties shall not be sold …… but that the same shall be only
possessed and enjoyed by our said children, to whom they arerespectively devised, during their lifetime, and after them by theirchildren.and grandchildren under the bond of fidei commissum."
“ And we jointly nominate all our seven children as heirs
and heiresses to all the residue and we desire that if any of
our said children should die without lawful issue, the devise orinheritance of such of our children which he or she may becomeentitled to under the will shall revert to the surviving brothers andsisters.” X died without issue. Y contended that the whole of the-share of X vested on him by virtue of the jus accreseendi.
Held,. (1) that the share of X did not devolve on Y alone, buton Y and his five sisters; (2) that the share of X did not veston the surviving six children absolutely, but subject to the fideicommissum.
It is well settled that the general rules for the interpretation ofwills are unsafe guides; and that the only true criterion is theintention of the testator to be gathered from the terms of the willand from the surrounding circumstances.
f|lHE facts are set out in the judgment in full.
van Langenberg, K.C., S.-G., for the first defendant, appellant.
A. St. V. Jayewardene, for the second, third, fourth, and fifthdefendants, appellants.
Bawa, K.C., for the plaintiff, respondent.
Cur. adv. vult.
July 18, 1912. Lascelles C.J.—
This appeal tumB on the construction of the joint will of FrancisCandappa and his wife Lucia dated August 11, 1859. The questionrelates to a piece of land known as Putuwille and Gooroomootenne,
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in which the plaintiff claims a 5-12ths share. The will, after provid-ing that the survivor of the joint testators should remain in posses-sion for his or her life, devised the property in dispute, together withother property, to the testators, two sons, Gabriel and Anthony,subject to a fidei commissum. It was admitted in argument(though the point was disputed in the District Court) that Gabrieldied without a surviving child. The plaintiff conteinds that onGabriel’s death his half share devolved in equal shares on Gabriel’ssix surviving brothers and sisters, and that he has acquired bypurchase the shares of five of Gabriel’s sisters; he accordingly claims5-12ths of the property. The defendants, who are the children ofAnthony, put forward several grounds of defence; but that relied onat the appeal was that the devise to Gabriel and Anthony was thesubject of a separate fidei commissum, and that on the death ofGabriel without issue his half share devolved by virtue of the jusaccrescendi on Anthony.
The case of Steenkamp v. De Vilhers 1 contains a clear expositionof the technical rules of the Boman-Dutch law with regard to thejus accrescendi. Applying these principles to the present case, andassuming that a separate fidei commissum was created with regardto the property in question, it is clear that in the clause of the willdealing with the property Anthony and Gabriel are joined re etverbis, so that in the absence of any indication of a contrary intentionon the part of the testators the right of accrual is to be presumed.
But it is well settled that the general rules for the interpretation ofwills are unsafe guides; and that the only true criterion is theintention of the testator to be gathered from the terms of the willand from the surrounding circumstances. (Voet 36,, 1, 72 cited inVansanden v. Mack.2)
The questions, then, for determination are whether the will createsa separate fidei commissum with regard to the property in dispute,and whether it contains such indications of the testators’ intentionas are sufficient to rebut the presumption in favour of the jusaccrescendi as regards Gabriel’s share.
The will, after the joint devise in favour.of Gabriel and Anthony,contains separate devises of immovable property in favour of each ofthe testators’ five daughters. It further contains.a devise of certainproperty in the Lascoreen village in favour of all five daughters,and a devise of certain property at Kotahena to all the testators’children. This last devise is stated to be “ to all our children inequal shares.”
The fidei commissum is created by the following general clause:—
“ Provided always and we hereby will and desire that our saidlanded properties or any part thereof shall not be sold,mortgaged, or otherwise alienated at any time, but thatthe same shall be only possessed and enjoyed by our said> 2 Juta's Leading Cases 202.* (2895) 1 N. L. R. 311.
1913.
IiABOBLLES
C.J.
Seneeiratnev. Candappa-pulle
1918.
Labohuum
C.J.
Seneviratnev. Candappa-pulle
( 152 )
children, to whom they ore respectively devised, duringtheir lifetime, and after them by their children andgrandchildren from generation to generation under thebond of fidei commiasum, and all the rents, profits,revenue, and income of the said immovable propertiescannot be attached, seized in execution, or sold for anydebt or liability of our said children or of the husbandsof our said daughters. ’ ’
At the end of the will comes the clause on which the respondentsrely to exclude the presumption of the right of accrual:—
“ And we jointly nominate all our seven children as heirs andheiresses to all the residue and remainder of our jointproperty and estate, movable as well as immovable, inshare and share alike, and we desire that if any of oursaid children should die without lawful issue, the deviseor inheritance of such of our cluldren which he or shemay become entitled to under this will shall revert to thesurviving brothers and sisters.”
The questions at issue in this appeal turn mainly on the construc-tion of this clause. The appellants contend that the clause appliesonly to the residuary estate, and the respondent that it appliesgenerally to all the property disposed of by the will. In my opinionthis clause must be construed as applying to all interests whichany of the testators’ children might take; under the will. Theexpression ‘‘ the devise or inheritance of such of our children whichhe or she may become entitled to under the will ” is, in my opinion,far too general to be limited to the residuary devise.
Then follows the question whether the six l-12th shares whichon Gabriel’s death devolved on his brother and on each of his fivesisters were subject to the fidei commisaxim, or whether they weretaken absolutely. If these shares were included in the fidei com-miaaum, the plaintiffs interests will be limited to the life interest, ifany, of his vendors.
On this point I find myself unable to agree with the opinion of thelearned District Judge. The will, read as a whole, in my opinionevinces, an intention to include the entire estate in a single fideicommi88um, with the benefit of survivorship amongst the institutedheirs. I find it difficult to believe that the testators intended thatthe share of any of the instituted heirs who might die childlessshould be withdrawn from the fidei commissum, for the object of thetestators plainly was to keep the property in their family to the fullextent allowed by law, and this intention would be defeated if theshares of heirs dying without children devolved absolutely on the.other heirs.
The case of Jobaz v. Jobsz 1 is in many respects similar to thepresent one. In that case it was held that although the testatrix
i 3 A. C. B. 189.
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.had divided her estate for the purposes of her will into four equalj>srts, yet the entire estate was to be regarded as the subject of oneiftnd the same fidei commissum t and that the shares of the children•dying without issue went to the survivors, not absolutely, butburdened with the fidei commissum.
The ratio decidendi in that case was that the intention of the"testatrix was to keep her property in her family as long as possible,snd that nothing could have been further from her intention than torelease the shares of children dying without issue from the fideicommissum and thereby to enable them to pass from her family.The reasoning on which this judgment was based appears to me tobe applicable to the case now under consideration.
It would be repugnant to the plain intention of the testators tohold that on the death of Gabriel his share went absolutely andfree from the fidei commissum to his brother and sisters. Ifthere had been evidence that the shareholders had for a longtime acquiesced in dealings with this share on the footing thatGabriel's brother and sisters took his share absolutely, I shouldhave hesitated in disturbing such an arrangement, but I do notthink the fact that, in the acquisition proceedings, the defendants•claimed and obtained compensation on the footing that Gabriel'sshare was free from the fidei commissum should prevent us fromgiving effect to what appears to be the real intention of the testators.
I would, therefore, amend the decree by declaring that on thedeath of Gabriel Mendis his share in the property claimed in thisaction devolved in equal shares on his brother Anthony Nonis andhis five sisters, subject to the fidei commissum created by the will ofFrancis Nonis Candappa and his wife Lucia, and that with regard tothe five l-12th shares, to which the plaintiff claims title respectivelyfrom Savaria, Antonia, Juliana, Maria, and Mariana, the plaintiff isentitled, subject to the terms of the fidei commissum, to the shareof such of the above-named persons as are now living.
With regard to costs, the appellant has succeeded in obtaining aconsiderable modification of the judgment, and I would allow himhalf the costs of the appeal.
1912.
IiASOHMiKS
C.J.
Seneviratnev. Candappa-pulls
Wood Benton J.—I agree.
Varied.
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