001-NLR-NLR-V-46-SHERIFF-Appellant-and-YOOSUFRespondant.pdf
THE
NEW LAW REPORTS OF CEYLON.VOLUME XLVI.
4944Present: Keuneman and Gannon JJ.
SHERIFF. Appellant, and YOOSUF, Respondent.
251-—D. C. Ratnapura, 7,367.
b’idei commissum—Legacy burdened tcith fidei commissum—Death of legateebefore testator—Roman-Dutch late.
Where a fidei commissum is imposed oil a legacy, the fidei commissumdoes not lapse with the death of the legatee before the testator.
Livera c. Cunaratne (17 N. L. R. 289) followed.
P
LAINTIFF sued the defendant, the executor of the last will of oneMohamed Haniffa to be declared entitled to a 6/20 share of an
estate called Haniffa estate. Plaintiff alleged that by his last willHaniffa devised the estate to Sitti Suleha subject to a fidei commissum.Plaintiff stated that the said Sitti Suleha predeceased the testator andthat the legacy lapsed. Plaintiff claimed as a brother and as one of theintestate heirs of Haniffa. The defendant denied that the legacy hadlapsed by the death of Sitti Suleha before the testator. The learnedDistrict Judge held that Sitti Suleha predeceased the testator and thatthe legacy therefore lapsed.
V. Per era, K.C. (with him S. A. Marikar), for the defendant,appellant.—This appeal involves a question of law, namely, whether afidei commissum created by will lapses when the fiduciary predeceasesthe testator. The fidei commissum in question in the present case isone attached to a particular property and not to a whole inheritance.The third exception mentioned in Voet 36.1.69 (Macgregor’s Translation,p. 149) covers this case. Moreover, the Roman-Dutch law relating totestamentary heirs is not applicable in Ceylon because it has been super-seded by the English Law governing executors and administrators. Thedecision in Livera et al. v. Gunaratna 1 is exactly in point. See alsoSteyn’s Law of Wills in S. Africa (1935 ed.) pp. 220; White v. Landsberg’sExecutors et al. 2; Oosthuysvn v. OosthuysenA
.V. Nadarajah, K.C. (with him P. Navaratnarajah), for the -plaintiff, •respondent.—It is clear law that a legacy lapses when the legatee diesprior to the testator—Grotius' Introduction to Dutch Jurisprudence2.24.29 (Herbert’s Translation, p. 171); Pereira’s Laws of Ceylon{1913 ed.) p. 463. A legacy burdened with a fidei commissum will also
• (1914) 17 N. L. R. 289.*S. A. L. R. (1918) C. P. D. 211.
‘(1868) Buchanan's Rep. 51 at 66.
KEUNEMAN J.—Sheriff and Yoosuf.
similarly lapse when the fiduciary dies before the testator—Lee'sIntroduction to Roman-Dutch Law (3rd ed.) p. 381; Pereira’s Laws ofCeylon, p. 454.
Cur. adv. vult.
November 10, 1944. Keuneman J.—
The plaintiff sued the defendant the execbtor of the last will of Ba wnLiebbe Mohamed Haniffa to be declared entitled to a 6/20 shave of anundivided 10 acres of Haniffa estate. Plaintiff alleged that by his lastwill which was duly proved in D. C. Colombo No. 9,682 (Testy.) Haniffadevised to Sitti Suleha the said undivided 10 acres subject to a jiileicommiesum in favour of certain persons. Plaintiff further stated thatSitti Suleha predeceased the testator and that the devise had lapsed,and that by reason of the lapse the said undivided 10 acres had devolvedon the intestate heirs of Haniffa. Plaintiff said he was the brother ofHaniffa and one of the intestate heirs and claimed a 6/20th shareof the said undivided 10 acres.
The defendant in his answer admitted the devise to Sitti Suleha andthe fact that Sitti Suleha predeceased the testatoj, but denied that therehad been a lapse and also denied the further allegations of the plaintiff.
The last will of Hayiiffa, No. 400 of January 20, 1941 (PI), granted thesaid undivided 10 acres to Sitti Suleha to be possessed during her naturallife and on her death the premises were to devolve on her lawful childrenbut. should she die leaving no children the said shares of the estate wereto devolve on the lawful children of Hanisia. There is no evidence on therecord as to whether Sitti Suleha left any children but there is evidencethat Hamsia has a son about six years old.
The District Judge held that as Sitti Suleha predeceased the testatorthe fidei .commissum lapsed and failed. He gave no reasons and citedno authorities for his decision.
Authorities have now been cited to us in appeal. Yoet (26.1.69;—I cite from McGregor’s Voet. p. 149—states “ The fidei commissummust also perforce fail if the fiduciary dies before the testator, becauseat the very time when the fidei commissum should vest there is no one tomake restitution thereof, no one who by adiating is bound to makedelivery of the fidei commissum. For we may take it that what has beenentrusted to the good faith of a person specially named as heir thetestator was desirous of giving only in the event of his being heir
It is to be noted that this applies to a fidei commissum imposed upon theheir. Voet, however, has mentioned certain exceptions to the rule:(a) where the testator has added the direct common substitution to the.fidei commissary substitution; (b) where the codicillary clause has beeninserted in a will containing a universal fidei commissum; (c) the case ofparticular fidei commissa with which a legatee has been burdened.
On the other hand Steyn (Law of Wills in South Africa p. 221) states—" A fidei commissum does not fail by .reason of the death of the fiduciarybefore the testator, nor because the fiduciary refuses to adiate. In such acase the fidei commissary heir or legatee will be entitled to the burdenedproperty forthwith, unless payment is in terms of the will necessarilypostponed, e.g., where all the fidei commissaries cannot then be
3
KKu- MAN ,1.—Sheriff and Yoosuf.
This view is based upon the change in South African Law, i.e., a changefrom the early Roman-Dutch law conception of the heir as the universalsuccessor of the deceased to the legislative provisions whereby the estateof a deceased person became vested in an executor:see White v.
Jjandsberg’8 executors and others *. In this case Searle J. commentson the reason given by Voet for his opinion: ‘‘The fiduciary was theheir and the heir represented the persona of the deceased; he took overthe whole estate with all its assets and obligations. But the executorhas now taken the place of the heir, with the modification that he isnot personally liable in the same way the heir was. his duty being todistribute the estate according to the testator’s expressed wishes. Theremay be fiduciary heirs in modern wills ancl executors as well, but neitheris in the same position as the heir under the old system ”. The learned•fudge expressed the view that it was difficult to imagine that " thereason given by Voet in the passage …. could influence themind of a modern testator, who appointed executors to carry out his will,in any manner at all.”
After a careful examination of a number of authorities, Searle J.eanie to the conclusion that “ the rule of law relied on by planitiff mustbe regarded as in effect abrogated by modern legislation with regardto estates ”.
The point emphasized in this judgment is that the rule of law enun-ciated by Voet has application to a fidei commissum imposed upon theheir under Roman Dutch law, and it is interesting to note that in thecase in question the matter related to a fidei commissum imposed uponthe residuary legatee, anil it was argued that the position of a residuarylegatee resembled in some particulars at any rate the position of theRoman-Dutch heir. In the case I am now dealing with, the position ismuch more closely akin to the third exception mentioned by Voet, viz ,a particular fidei commissum with which the legatee has been burdened.Such a fidei commissum, in Voet’s view, was not defeated by the death• of the fiduciary before the testator.
The argument of Searle J., which I accept, applies with equal force inCeylon, where the modern executor has replaced the older Roman-Dutchheir by virtue of legislation. There is in fact local authority for that—see Livera v. Gunemtiirwhere the passage in Voet was considered.Pereira J. there stated—
■‘ The next question is whether by reason of the death of Cornelis■Tacobus before the testator the fidei commissum lapsed and the propertyfell back into the estate of the testator. Now, it is a general rule of theRoman-Dutch law that a fidei commissum ended by the death of thefiduciary heir before the death of the testator …. but ” heirmust not be taken as a mere devisee under a will of our time. Thereference is to the ‘ testamentary heir or heirs ’ under the Roman-Dutchlaw, in whom was vested in the first instance the entirety of the propertyof the testator, and to whom was committed the power of carrying outhis wishes and directions. In him was vested inter alia the rights,duties and responsibilities of the executor of our time, and his presence
1 (1918) Cape Supreme Court Reports 211.
* 17 N. L. R- 289.
The King t. P. A. Kadireeu.
was necessary to animate, so to say, testamentary dispositions. Adevisee under a modern will, be lie a total stranger to the testator or onewho would but for the will be his heir according tq intestate succession.i6 more in the position of a legatee under the Roman-Dutch law, andin the case of a fidei commiasum with which a legacy is burdened, it does,not lapse by the death of the immediate legatee before the testator.
accordingly hold that the plaintiff has failed to prove that the testa-mentary devise in question has failed or lapsed. It is unnecessary toconsider the other matters raised in the issues.
The appeal is allowed, and the' plaintiff’6 action dismissed with costsin both courts.
Cannon J.—I agree.
Appeal allowed. –
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