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Preaent: The Hon. Sir Joseph T. Hutchinson, Chief Justice,,and Mr. Justice Wood Benton.
SILVA v. PHILIPPS et al.
D. C., Galle, 8,278.
Last will—Prohibition against alienation outside the family—Validity.
A joint last will contained the following clause:—
“ After the death of the survivor of us. we give and bequeath toCharles Samuel, . George Martinus, William Nathaniel, and Peter,our four sons, and the said Priscilla Caroline, our daughter, all thathouse No. 2, and all that house in which we at present reside, and allthat land situate in the Quarter Lr. K. within the Fort of Galle,.and bounded on the north by military ground, on the west by thehouse and premises of Wackwelle Ommegilliyege Smgho Appu deSilva, on the east by the Moderbay street, and on the west by theproperty of Mr. Loret, to be held and possessed in common (by themin equal shares, share and share alike), but neither the whole of thesaid house and premises nor. any share or part thereof shall any ofthe said shareholders sell or mortgage to any other person or persons,save to and amongst the joint shareholders, nor shall the same be .liable to the dobts of any of the shareholders thereof; and in caseany ofthesaidshareholders shoulddie withoutlawful marriage or
legitimate issue, then and in such case the share of the person orpersona dying to revert to and become vested in the surviving share-holder or shareholders, to be by him, her, or them, or by his or heror their heirs, held and possessed according to the law of succession."
Afterthedeath ofthe testatorsand afterprobate had been
granted, Peter, one of the. devisees, sold and conveyed his share tothe plaintiff.
Held,thattheaboveclause gavethe deviseesa right of owner-
ship, subject to the right of pre-emption on the part of the othershareholders,andthattherefore theconveyanceby Peter to the
plaintiff was bad.
PPEAL from a judgment of the District Judge of Galle(K. W. B. Macleod, Esq.).
The following is the judgment of the District Judge (October 3,1907): —
“ Plaintiff seeks sale of premises depicted in plan 823 filed in case,claiming one-fifth of land and one-fifth of house No. 2 and old houseon deed 289, dated December 5, 1901, executed by Peter, one of thefive children of Amoldus Hendricks and Somalia Hendricks, originalowners. Plaintiff desires sale and not partition, in view of thesmall extent of the property—32 perches—rendering partitionimpracticable.
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“ The contesting defendants argue that the premises are subject toa fldei oommissum in view of paragraph 2 of the joint will of Arnoldusand Somalia Hendricks. This paragraph bequeaths the premisesin question to the testator’s five children, ‘ to be held and possessedin common (by them in equal shares, share and share alike), butneither the whole of the said house and premises nor any share orpart thereof shall any of the said shareholders sell or mortgage toany other person or persons, save to and amongst the joint share-holders, nor shall the same be liable to the debts of any of the share-' holders thereof; and in case any of the said shareholders should diewithout lawful marriage or legitimate issue, then and in such casethe share of the person or persons dying to revert to and becomevested in the surviving shareholder or shareholders, to be by him,her, or them held and possessed according to the law of succession. ’
“ Peter, plaintiff's vendor, has admittedly contracted a lawfulmarriage, and has had legitimate issue. On the other hand, he didnot offer his share for sale to his co-shareholders.
“ The question is, What is the effect of the clause under thesecircumstances?
“ Mr. Jayewardene contends that it renders void the transfer toplaintiS. I agree with his contention..
“ There is an express prohibition of alienation to a stranger, whichplaintiff admittedly is. Following Ibanu Agen v. Abeysekere,1 andconstruing the clause as a whole, I think it is clear—
“ (1) Peter was not given the share absolutely;
“ (2) Who is to take after him, and in what event, for if he diesunmarried or without legitimate issue the share devolves on sur-viving shareholders, and if he dies leaving legitimate issue then hisshare devolves on such legitimate issue.
“ I therefore must give effect to the testator’s intention. I thinkPeter’s transfer to plaintiff is void. I dismiss plaintiff’s case withcosts.”
The plaintiff appealed.
Walter Pereira, K.C., S.-O,, for the plaintiff, appellant.
St. V. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
June 4, 1908. Hutchinson C.J.—
This is an appeal by the plaintiff against a decree dismissing hisaction. The action was brought under, the Partition Ordinance,the plaintiff claiming to be entitled to an undivided share of someland and houses in the Fort of Galle, the remaining shares of whichhe allots to the defendants, and asking that, as a partition would beimpracticable, the property may be sold.
1 (1903) 6 N. L. R. 344.
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The property belonged to Amoldus Hendricks and his wifeJune 4- Somalia; they jdevised it to their four children, one of whom wasHutchinson Peter; and Peter by deed of December 5, 1901, sold and conveyedhis share to the plaintiff. The defendants are the representativesof the other children, and say that under the terms of the will Peterhad no power to convey his share to a stranger without their consent.
The will is in English. The devise on which the decision of thiscase turns is in the following words: —
“ 2. After the death of the survivor of us, we give and bequeathto Charles Samuel, George Martinus, William Nathaniel, and Peter,our four sons, and the said Priscilla Caroline, our daughter, all thathouse ” (describing the property) “to be held and possessed incommon (by them in equal shares, share and share alike), but neitherthe whole of the said house and premises nor any share or partthereof shall any of the said shareholders sell or mortgage to anyother person or persons, save to and amongst the joint shareholders,nor shall the same be liable to the debts of any of the shareholdersthereof; and in case any of the said shareholders should die withoutlawful marriage or legitimate issue, then and in such case the share' of the person or persons dying to revert to and become vested in thesurviving shareholder or shareholders, to be by him, her, or them,or by his, her, or their heirs, held and possessed according to the lawof succession.’’
After the death of the testators and probate of the will, Peterexecuted the deed of conveyance to the plaintiff. Peter was marriedand had issue; there is no evidence whether he is now living or not.The defendants in their answer said that the conveyance by Peterwas of no effect, and that they always were and still are willing tobuy Peter’s share.
The District Judge held that there was- an express prohibition ofalienation to a stranger, which the plaintiff admittedly is, and thatthe conveyance was void.
The appellant’s counsel contends that the last part of the devisegives each devisee the absolute ownership of his share in the event ofhis marrying and having issue, which event happened in Peter’scase. That- may perhaps be so; but if it is so, the ownership iscoupled with the proviso against alienation to any one except hisbrothers and sisters; that is to say, it gives them a right of pre-emption.That seems to me to be the plain meaning of the testators; and Ican see no reason for holding the proviso to be unlawful or imprac-ticable. I think the appeal should be dismissed with costs.
Wood Renton J.—
I agree. I think that the intention of the testators was, as far aspossible, to preserve the property in the family. To effectuate thatintention they (1) bequeathed it to their children, the shareholders:
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“ to be held and possessed in common;” (2) specifically prohibitedthe sale or mortgage of any part of it except to a shareholder; (8)attempted to protect it from seizure for a shareholder’s debts; and(4) provided that if a shareholder died “ without lawful marriage orlegitimate issue,” his sfiare should vest in the surviving shareholderor shareholders, .to be held and possessed according to the law ofsuccession. The lawful marriage of, or birth of legitimate issue to,Peter defeated any right of survivorship as regards his share. Itmay also have vested the ownership of that share in himself (see DeVos’ Translation of Dutch Consultation, Part II., Consultation ‘181 ;5 Ceylon Law Review 117). But if so, it was a right of ownershipsubject to the right of pre-emption conferred by clear implication jnthe will on the other shareholders (cf. Josef v. Mulder1), a rightenforceable against the appellant, who purchased from Peter withnotice of the will (see PI. Bill of Sale, December 9, 1901, schedule).
SILVA v. PHILIPPS et al