012-NLR-NLR-V-28-SILVA-v.-JAYEWARDENE.pdf
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Present: Garvin A.C.J. and Lyall Grant J.
SILVA v. JAYEWABDENE.324—D. C. Colombo, 12,859.
Joint toiU—Mutual disposition between ftusband and toife—Interest ofsurvivor—Life interest—Vesting and transmission of rights.
Bamlal Maharajahand hiswifeSeypafcchy (aliasSivappiragasa
Ammal), by their joint will dated December 22, 1892f after makingcertain mutual dispositions devised the property in dispute totheir nephew Sivapoonian, and in the event of his death withoutissue to the children of 0. S. Perera living at the time.
The material provisions of tb© -dll are as follows: —
“ Secondly.—We give and dse and bequeath uuto the survivorof us, all and singular our joint estate and property, im-movable andmovable,realand personal of whatsoever
nature and wheresoever situate in manner following, that isto say: In the event of me, the said Bamlal Maharajah,being the survivor, it is our will and desire that I, the saidBamlal Maharajah, shall become absolutely entitled to allour joint estate …. and that I, the said testator,shall have the full, free, and unreserved and absolutedisposal of all onr said property; but in the event of me, thesaid Sivappiragasa Auvmal, being the survivor, it is our willand desire that I shall not sell, mortgage, gift, dispose of bywill or in any other manner alienate or encumber our immov-able property,but shallholdand possess thesaid property
and receive and enjoy the rents, profits, and incomethereof during my lifetime, aud after my death the sameshall devolve on the devisees and legatees hereinaftermentioned.
“ Thirdly.—To Sivapoonian, the nephew of me, I he tesla tor. wegive and devisethefollowing properties …:
provided however, we the testator and testatrix herebyexpressly will and declare that the saidSivappeniun
shall not sell, mortgage, gift, dispose of by will, or ju anyother manner alienate or encumber the said premises, butshall bold and possess the said premises and enjoy the rentsand.profits and income thereof during his life, and after hisdeath the said premises shall devolve on his lawful child,children, or issue;andprovided furtherthat … .
in the event of the said Sivapoonian dying without leavingany lawful child, children, or issue the benefit of the deviseshereinafter made to him shall immediately cease anddetermine, and the premises hereinafter devised to him shalldevolve absolutely ontheperson hereinafternamedinthe
manuer following: the house and ground Nos. 108, 109, liOfsituate in Main Street, Colombo, on the children of C. S.Perera, diseased, nephew of me, the saidtestator,oron
such of the children as may be living at the time.’*
1928
( 116 )
1926
Silva v.Jayewar-
denr
Bamlal died io 1892. SeypaWhy, who survived her husband,died in August. 1920. Sivapoonian died io 1896 without leavingany children.
Held, that on the death of the testator the interest obtained bythe survivor under the will was a usufructuary one and that theproperty vested in Sivapoonian; on the death of Sivapoonianwithout issue, his rights devolved on the children of C. S. Pereraliving at (he time of his death.
I
N this action plaintiff claimed to be the sole owner of premisesNos. 108, 109, 110, Main Street, Colombo* The defendant
asserted title to one-tlih’d share as the executor of G. E. Perera.Both parties claimed title under the last will of Bamlal Maharajahand his wife Seypatchy (alias Si zappiragasa Amina) dated December22, 1892. Ramlal died shortly after the execution of this jointwill, which was admitted to probate in case No. 326 of the DistrictCourt of Colombo. The material provisions of the last will areset out in the headnote. The plaintiff contended that by the lastwill these premises ' were bequeathed to Seypatchy, the survivingtestatrix, subject to a fidei commission in favour of his nephewSivapoonian and his children; and in the event of his dyingwithout lawful issue in favour of the children of C. S. Perera whomay be alive at the time of Seypatchy’s death. It was admittedthat Sivapoonian died in 1896 without leaving any children, andthat all the children of C. S. Perera, with the sole exception of theplaintiff, were dead at the time of Seypatchy’s demise in August,1920. On the other hand, it was urged on behalf of the defendantthat the premises were devised to Sivapoonian subject to a usufructin favour of Seypatchy, and that upon his death without issue,these devolved on the three children of C. S. Perera who wereliving at the time of Sivapoonian’s death, of whom the defendant’stestator was one.
The learned District Judge upheld the. plaintiff’s contention, butheld that the judgments in certain actions to which the plaintiffwas a party barred his claim.
J. S. Jayewardene (with Canekeratne and James Joseph), forplaintiff, appellant.—The learned District Judge has erred on thequestion of res judicata. The property, which formed thesubject matter of the actions referred to, was not claimed bythe parties under the will. Besides, the parties were alltiffs, and they could not be said to be at issue. ' Senaratne v.Perera.1
Allan Drieb'erg, K.C. (with Hayley, Cooray, and H. V, Perera),lor defendant, respondent, conceded that, the judgment cannotbe ■ supported on the ground of res judicata.
i {1924) 26 N. L. B. 225.
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The question is, whether the interest of Seypatchy is usufructuaryor fiduciary. The parties have acted on the basis that Seypatchyhad only a life-interest and the Court will not disturb tbe airnnge-ment. Vaneanden v. Mack.1•'
As regards the language of the will, theAWords are' " We givethe bequeath in manner following.” ,Thfe gift and bequest isqualified by the expression used. Now the ' testator keeps the‘‘ dominium ” to himself, as contrasted with the nature of theinterest given to the wife.* . • *
Then the will proceeds “ after my death the property shall devolveon the devisees. ” Subject to the life-interest of me, the saidSeypatchy. We make the following devises.
The use of the word ‘‘ life-interest ” indicates the intention. Theusual presumption is in favour of the wife having only a lifd interest.We contend that this is a direct bequest to Sivapoonian. If he/lies his children would take. Failing his children, the propertywould go to the children of C. S. Perera. If Seypatchy got thedominium, the death of Sivapoonian before her would put an endto the fidei commissum (Mohamed Bhai v. Silva2). If Sivapooniandies and there is a transmission, the beneficiaries would be thechildren- of C. S. Perera alive at the death of Sivapoonian.
The will construed by Schneider J. in Ounawardene v. Viswana-than was not a joint will. There is no description of the' interestas “ life-interest.” There is no direct devise to the legatees. Thepresumption is in favour of a usufruct (Lee’s Roman-Dutch Law.348). In the case of a joint will the interest of the widow mayfairly be presumed to be usufructuary. Juta on Wills 102.
J. S. Jayewardene (in reply).—The conduct of the parties in theconstruction of a will is valueless. Jayatileke v. Abraham-.* Thereis a dictum of the Privy Council to the following effect: “ Theconstruction should not be coloured by the after behaviour ofthe parties. Brito v. Muttunayagain.1
The words “ subject to a. life interest ” are used loosely. Theyare used with reference to the devise as “ aforesaid. ”
The second clause runs “ We and bequeath to the survivor.”The effect of the words is to give dominium.
We contend that the children of C. S. Perera are substituted inthe event of Sivapoonian not taking. It amounts to a substtutionof the heirs of Perera to Sivapoonian. Oalliers v. Rycroft* Thewords ” benefit of such devise shall devolve on ” clearly indicatesuch an intention. McGregor's Voet, pp. 144 and 145 ; Kotze'aVan Lceuwen, p. 372.
1 (1893) 1 N. L. R. 311.* 4 C.W. R. 31.
(1911) 14 N. L. R. 193.» (1918) 20 N. L. R. 327.
(1922) 24 N. L. R. 225.* 3 Bal. 72.
ISM
RiUaH.
Jayewar-
dmvt-
1926
( US )
Jaytwar-
dene
As an authority for the proposition that on the death of Siva-poonian the fidei commissum does not lapse, see Thyagaraja v.Thyagaraja-1
Cur. adv. vult.
August 31/1926. Garvin A.C.J.—■
This: appeal arises out of a 'contest aa to title. The plaintiffclaimed to be the sole owner of premises Nos. 108, 109, and 110 inMain Street, Colombo. The defehdant, who is the executor of thelast will of one C. E. Perera, admits that he is in possession of thepremises as to a one-third share and denies the right of the plaintiffto anything more than an equal share with his testator.
Both parties claim under the joint last will of Eamlal Maharajahand his wife Seypatchy dated December 22, 1892. Eamlal Maha-rajah died in 1892 shortly after the execution of this joint last will,which was duly admitted to probate in case No. 326 of the DistrictCourt of Colombo. Seypatchy, who survived her husband, died inAugust, 1920.
The plaintiff’s contention is that by this last will these premiseswere bequeathed to Seypatchy, the surviving testatrix, subject toa fidei commissum in favour of her nephew Sivapoonian and hischildren, and in the event of his dying (Without lawful issue infavour of the Children of C. S. Perera who may be alive at the timeof Seypatchy's death.
It being admitted that Sivapoonian died 1896 without leaving-any lawful children, and that all the children of C. S. Perera, withthe sole exception of the plaintiff, were also dead at the time ofSeypatchydemise, the plaintiff claims that the whole of thesepremises devolved on her to the exclusion of the heirs of her deceased,brother and sisters.
On the other hand, it is contended bv the defendant that thesepremises were by the last will devised to Sivapoonian subject to ausufruct in favour of Seypatchy, and that upon his death withoutlawful issue the premises devolved upon the four children of C. S.Perera, who acquired a good and transmissible title thereto, subjectonly to the usufruct reserved to Seypatchy. One of the childrenof C. S. Perera, a daughter, Eugene, died intestate and unmarriedafter her interest had vested', leaving as her sole heirs two sistersand a brother, C. E. Perera, the testator of the defendant'executor.The defendant thus claims a one-third share for his testator andassigns a one-third to the plaintiff. The remaining one-third liaspassed to others who are not parties to this action. .
The learned District Judge upheld the plaintiff’s contention, buthe held that the judgments in certain actions to which the plaintiffwas a party operated as a bar to the present claim and amounted roan estoppel.
1 {1921) 22 N. L. R. 423.
( m )T&b 'cannot sustained on these grounds. Cases
Nos> 29.642 and 25,856 weve froth proceedings under the PartitionOrdinance at the instance of the present plaintiff Mid others. Theydo not. however, relate to any of the premises which form the sub-ject-matter of this action. The title claimed, so far as the plaintiffswere concerned, was in each case an independent title whicht was notbased on this joint will. They did not, and could not, raise anyissue as to whether Seypatehy's interest under this last will wasthat of a fiduciary or merely that of a usufructuary.
Xor do I'think the District Judge is right .in his view that theproceedings in the two testamentary cases he refers to can be heldto, estop the plaintiff from maintaining the contention that she isunder, this joint will splely entitled to these .*premises. Theseproceedings indicate that the plaintiff's view of her own rights hasbeen that .she took equally with her brother and sister from Siva-poonian on the footing, that he was vested with the title to thesepremises of which Seypatchy was only usufructuary, but that doesnot of itself constitute an estoppel.
The : question for decision is whether the District Judge wasright in holding that under this joint will Seypatchy took, a titleto these premises burdened with a fide.i commissum and not a mereusufruct. If he is right, it will still remain for us to considerwhether even in that view the plaintiff's claim to take the premisesexclusively -is sustainable.
The. material provisions of this will are as follows: —
■ Secondly.—We give and devise and bequeath unto the survivorof us all and singular our joint estate and property,immovable and movable, real and personal of whatsoevernature and wheresgever situate, in manner following, thatis to say: In the events of me, the said Sivilal MaharajahBamlai Maharajah, being the survivor, it is our will and-desire that I. the said Sivilal Maharajah ihmiiai Maha-rajah. shall become absolutely entitled $o all our jointestate and property, immovable and movable, real andpersonal of whatsoever nature and wheresoever situate,nothing excepted, and that I, the said testator, shall havethe full, free, unreserved, and absolute disposal of all oursaid property, but in the event of me, the said Sivappira-gasa .Ammal, beirig the survivor, it is our will and desirethat I, the said Sivappiragasa Ammal, shall not, save as isin the sixth clause hereinafter mentioned, sell, mortgage,gift, dispose of by will or in any other manner alienate orencumber our immovable property or any of them or anyphrfc or portion thereof, but shall hold and possess the saidimmovable property and receive and enjoy the rents,
teca
Gasvztr
A.O.J,
SUwf
Jayewar*
dene.
( 120 )
1886
Gisvnr
AXU.
SUoav.
Jayewor-
dene
profits, and income thereof during my lifetime, and aftermy death the 6ame shall devolve on the devisees andlegatees hereinafter mentioned.
“ Thirdly.—Subject to the life-interest of me, the saidSivappiragasa Animal, as aforesaid, we make the followingdevises, viz: —
(a)
“(b) … .
“ (c) To Deyereno Maharajah Sivapoonian Maharajah,nephew of me, the testator, we give and devise thefollowing properties, to wit:—(1) All that houseand ground bearing assessment No. 115 situate atSea street in Colombo; (2) all that house andground and all the buildings forming part thereofbearing assessment No. 123, situate at Sea street in.Colombo; (3) all that house and ground bearingassessment No. 90, situate at Fourth Cross street inColombo; and (4) all that house and groundbearing assessment Nos. 108, 109, and 110, situateat Main Street in Colombo. Provided however andwe, the said testator and testatrix hereby expresslywill and declare that the said Deyereno Maharajah.Sivapoonian Maharajah shall not on any accountwhatsoever sell, mortgage, gift, dispose of by will, orin any other manner alienate or encumber the saidseveral premises or any of them or any portion there-of, or the rents, issues, profits, or income thereof, orof any portion thereof, but shall hold and possess thesaid premises and enjoy the rents, profits, and incomethereof during his life, and after his death the saidseveral premises shall devolve on his lawful child,children, or issue, the child or children of anydeceased child or children taking the share or sharesto which his, her, or their parents would have beenentitled if living. And provided further and we,the said testator and testatrix, hereby expresslywill and declare that in the event, of the said Deye-reno Maharajah Sivapoonian Maharajah selling,mortgaging, gifting, or in any other manner alien-ating the said premises hereinbefore devised to himor any of them or any portion thereof, or the rents,profits, or income thereof or of any portion thereof,or in the event of his signing or executing any deedor writing for any of the purposes aforesaid, or inthe event of the 6aid premises or any of them orany portion thereof or the rents, profits, or income
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thereof or of any part thereof being seized or soldin execution for any debt or default of the saidDeyereno Maharajah Sivapoonian Maharajah, or inthe event of the said Deyereno Maharajah Siva-poonian Maharajah dying without leaving anylawful child, children, or issue, then and in any suchcase the benefit of the devises hereinbefore made tohim shall immediately cease and determine, and thesaid several premises hereinbefore devised to himshall devolve absolutely on the persons hereinafternamed in manner following, to. wit: The housesand ground No. 115, situate at Sea street inColombo, and No. 90, situate at Fourth Cross streetin Colombo, on Charlotte Agnes Perera, wife ofCharles Abraham Perera Sameresekere, and niece ofme, the said testator, or if she be dead at the time,then on her lawful child, children, or issue; thehouse and ground No. 123, situate at Sea streetin Colombo, on George Perera, nephew of me, thetestator, or if he be dead at the time, then on hislawful child, children, or issue; and the house andground Nos. 108, 109, and 110, situate at Mainstreet in Colombo, on the children of CharlesStephen Perera, deceased, nephew of me, the saidtestator, or on such of the children as may beliving at the time/*
The opening words of the second clause, “We give and bequeathto the survivor all and singular our joint estate . i *. are
controlled by the words “ in manner following/’
The clause then proceeds to define the nature of the deviseaccording as the husband or the wife is the survivor. If the husbandsurvived, he was to have “ full, .free, unreserved, and absolutedisposal ” of all the property. But if the wife survived her husband,she was not to alienate or encumber the immovable property, butwas to hold and possess the same and receive the rents and profits,issues and income thereof during her lifetime, and after her deaththe “ same ” was to devolve upon the legatees and devisees.
The interest she took was clearly not absolute. Was it a mereusufruct, or was it the dominium with full rights of enjoymentburdened with a fidci conimissmn?
We are invited to construe the clause “ secondly " as involvinga transfer of the dominium of all the immovable property to thesurviving testatrix burdened as to each item with a fidei comtnisBUinin favour of the particular legatee to whom that property is assignedby clause “ thirdly/* If clause “ thirdly ” is merely a catalogue .ofthe particular individuals who were to take the different premises
IBM
Gabvxk
A.OJ.
SUva fc.Jay^oar-
<feae*
1926
Gartik
A.C.J.
Sti/vav.
Jbyewar-
Jen*
(. 122 >
which together comprised the immovable property dealt with inclause secondly in succession to Seypatehy after her death, therewould be much' force- in the contention that Seypatehy’s was afiduciary interest. But does this help the plaintiff? In this viewSeypatehy had a fiduciary interest in the’ premises which form thesubject matter of this action, and Sivapoonian's interests were thoseat a fidei commissary. Sivapoonian having predeceased Seypatehythe'fidei commissum is at an end, if as is contended Sivapoonianunder* this' will took neither the dominium nor any transmissiableinterest.
“ The fidei commissum fails by the happening of a fortuitous eventif the fidei commissary heir die during the pendency of theconditions on which the fidei commissum depends; for hedoes not transmit the expectation of the fidei commissumto his heirs, unless there be some evidence of a contraryintention on the part of the testator * whether that beexpress, in that he ordered that on the fidei• commissaryt-dying before ’ the fulfilment of the condition his heirsshould succeed him in respect of the expectation of thefidei -commissum…” Voct 36.1.67.
The presumption is that the testator did not intend that fideicommissary legatee to have any transmissible right unless hesurvived the fiduciary (vide ~Samaradiwakara v. de Saram 1).
The ordinary rule is that in the case of a fidei commissum thefiduciary retains the dominium until his death and there is no vestedinterest in the remainder nor during that interval. Where the fideicommissary dies before the fiduciary the latter takes the property.
It is argued that by reason of the provisions of the third clausethe fidei commissum does not fail. Now by that clause the' testatorgives a legacy to Sivapoonian and burdens it in his hands with afidei * commissum upon condition that in . the event of hits deathwithout issue the premises which are to form the legacy are to passto the children of C. S. Perera who may then be alive. The fideicommissum thus imposed can only operate when the premises vestin Sivapoonian. If the second clause does create a true fideicommissum the legacy to Sivapoonian is conditional on his surviv-ing the testatrix Seypatehy and failed by reason of his predecease.
There can be no doubt that if Sivapoonian. lived to take luslegacy, it- would by operation of this clause have been immediatelyburdened with* a fidei commissum upon condition that at his deathit should pass to his children, or failing children to the children ofC. S. Perera who were alive at the time. But he did not surviveSeypatehy, and if her interests were those of a fiduciarius he die*lpending'.the condition on which that fidei commissum depended.
I am quite unable to see anything in the language of the thi;-tclause to suggest that it was the intention of the testator to substi-tute Sivapooniah’s children or alternatively €. S. Perera’s children1 (1911) u X. L. R. 32J.
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aa legatees in the piace of Sivapoonian. In relation to the fidei■commissum imposed on Sivapoonian the children of C. 8. Perera aresubstituted in the event of Sivapoonian dying without children.But there is no similar substitution of either Sivapoonian’s children•or C. S. Perera’s children as fidei commissary legatees under thefidei commissumr said to be imposed on Seypatchy. Nowhere in thiswill is there an express direction or a clear indication that the premisessaid to be vested in Seypatchy subject- to a fidei commissum areto devolve at her death in the event of Sivapoonian having pre-deceased her to his children, or failing them to the children of C. S.Perera who may be alive at her death. On the, contrary, those whoare to take the premises in substitution for the children of Sivapoo-nian are those children of C. S. Perera who were alive at Sivapoo-nian’s death.
In the absence of such a substitution, the fidei commissum, ifindeed Seypatchy’s interests were fiduciary, failed, .and she trans-mitted to her intestate heirs a free and unfettered title thepremises.
/ Counsel for. the defendant suggests two possible views which maybe taken of this will: —-
*a) That it gave to the surviving testatrix a usufruct with thedominium to Sivapoonian.~
lb) That though the testators have used language'which createsh prior interest in the nature of a fidei commissum, theyf did not intend to postpone the vesting of the interest ofthe legatee until the termination of such prior interest(vide Strydom Strydom,1 Jvia on Wilts, p. 101}.
• If the clause “secondly” stood alone it would be difficult toresist-, the conclusion that the> testators having massed their jointestate intended that- if the husband survived he was to- take thewhole absolutely and .without any condition or limitation, whereasif the wife proved to be th6 survivor she .was to take the movablesabsolutely and the immovable property subject to a fideicommissum in favour of certain specified persons. .. .
But it is followed immediately by the words—
. Subject to the life-interest of me. the said Sivappiragasa Animal(/.<?., Seypatchy) as aforesaid, we make the following, devises, viz:—r
.'“(&)■ To the trustees and wardens of the temple called. w…. we give, and bequeath the following
properties, to wit
“(h) To our son Ramlal Maharajah ' Canagasabav Maha-rajah we give and devise, the following properties,to Tyit:— …. "(A fidei 'commissum' is
imposed on the legacy.)
i 11 s. c. Jt. 4»?>.
1926
GabvxkA jOJ.
Silva v.Jayewardene
1*86
0ABV3X
A.C.O.
>9*109 O.Jagwat-
( 124 )
(c) To I>eyereno Maharajah Sivapoonian Maharajah wegive and devise the following:— .. .* (A
,fidpi commis8um is imposed on the legacy.)
“(d) To Charlotte Agnes Perera, George Perera, and thechildren of C. S. Perera we give and devise all theestate called ‘Markuwathura estate.’
“(e) To Muthiahpulle Sinnathamby we give and devise the' following properties, to with:— …. (The
legacy is charged with a fidci comvuxtsum.) ■
“(/) To Kalubovill&ge Selestiah Perera we give "and deviseabsolutely all that small piece of land . v .
All these dispositions, some of them burdened with fidci cow-misaa, are made “ subject to the life interest of me, the said Sivap-piragasa Ammal as aforesaid.” It is urged for the defendant thatthese words are the testators* declaration that the interest' createdby the second clause is a life interest only, a mere usufruct, andthat these dispositions are only consistent with that view. For thl*plaintiff it is submitted that the words “ life interest as aforesaid ”mean the fiduciary7 estate for life created by the preceding clause..
The use of the expression “ life interest ** followed by such elabor-ate dispositions of ;fehe property subject to this “ life interest- “ itthe foundation for the contention that the intention of the testatorswas to give a vested interest to the legatees and in that mannerdefinitely assure that the property thus devised will follow in theline of devolution so carefully and so clearly indicated.
** All construction must yield to the intention of the testators-and even where the intermediate interest is a fiduciary7 one;; theremay. be a vesting in the heir or legatee." Juia on Wills, pp.62 and 63.
It does not matter to the defendant whether the interest ofSeypatchy be fiduciary in nature or only usufructuary so long acan intention- to give a vested and transmissible interest to. Sivapoo-nian sufficiently appears.
The argument for the defendant is reinforced by evidence whichshows that Seypatchy, the testatrix, had construed her rights to b*those of usufructuary and nothing more.
In the two partition cases Nos. 25,856 and 29,642 earlier referred*o Seypatchy was in each case the first defendant. Her interestswere defined in the plaint filed in each case as a life interest—theterm being used in the sense of a usufruct. She assented to this inher answer, and in each case permitted a decree to be entered declar-ing the defendants—who claimed title under clause “ thirdly ” ofthis joint will-r-entitled to the interests claimed by them subject toher life interest. These decrees were entered on August 3, 1908,and March 19, 1917, respectively.
( 125
Moreover, there is ample evidence to show that the survivingexecutor of this joint will and the children of C. S. Perera hadconsistently acted in the matter of the lands devised by this lastwill on the footing that Seypatchy’s interests were usufructuary.
The clause "fourthly" in contrast to those provisions of thesecond clause which have been hereinbefore specially referred tovests all movables in Sevpatchy absolutely in the event of herbeing the survivor.
The intention of the testators as to the devolution of theirmovable property in the event of Seypatchy being the survivor isclearly that it should vest in her absolutely. In the event of thehusband bang the survivor both movable and immovables were tovest* in him absolutely. As regards the immovable property, of thetestators in the event of Seypatchy being the survivor, .it is clearthat she was only to have the enjoyment for life. Nowhere in thiswill, which contains such elaborate provisions, is there any. clause”which , suggests that it was the intention of the testators that uponthe happening of any event the immovable property was to vestabsolutely in' Seypatchy.
On the-1 other hand, there is every indication in the third clause oithe intention of the testators that their immovable property was topass to their legatees and those in whose favour that property wasburdened with fidei commism in the hands of the legatees.
If that intention is to have effect, the language chosen by thetestators and used by them when making the legacies—languagewhich'is appropriately employed to vest an interest in property—must be taken to mean that an interest was vested in the legateeson the death of the first dying testator. Such an interpretation isconsistent with the use of the term " life interest " in that veryclause in the sense of usufruct.
If the will be construed as vesting no transmissible interest, thenin the case of this, and possibly other dispositions, the .legatees andthose to whom the subject of the legacies was to pass from themtook nothing, and the intention of the testators as to the devolutionof this property is frustrated.
Since 1923 the testatrix Seypatchy, the children of C. S. Perera.and many of those who would have taken interests in this estateif the original legatees had a transmissible interest have dealt withthe^r respective interests in the view that Seypatchy had only «usufructuary, interest for lifer
That appears to me to be in accordance with the intention ofboffethe. testators.
For these reasons I would affirm the judgment of the DistrictJudge dismissing plaintiff's action, and dismiss this appeal with costs..
Lyall Grant J.—I agree.
1926
Oabvik
a.q.o .
Silva v.Jayewar-
Appeal dismissed.