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Present: Dalton and Drieberg JJ.
SOPINONA v. ABEYWARDENE et al.
357—B. C. Chile, 23,160.
Fidei Conunissum—Prohibition against alienation to outsider—Realprohibition—Intention of testator.
Where a testator bequeathed certain property to three brothers,the children of a deceased grandson, subject to a fidei commissumin favour of their heirs, and where the last will contained a-prohibition against alienation except among the co-legatees andheirs,—-'
Held, that the fidei commissum was a real one and that it attachedto a share of the property purchased by one of the legatees fromanother.
HTS was a partition action in which two questions arose fordecision, turning upon, the construction of the terms of the
last will of one Madalena Hamy. The relevant clauses were aafollows:—
I do hereby grant and bequeath out of £ part of the movableand immovable property of my estate, 1/6 part to mygrandson Andris Wijeyasekere, another §part to Edward,Henry, and Richard Wijeyasekere, and the other £ part toDavid Perera Wijeyatunge . . . .
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I do further direct that the property bequeathed to the partiesnamed, who are the legatees of this last will and testament,are hereby authorized to possess among themselves andtheir descending heirs, and they are hereby prohibitedfrom selling, mortgaging, or gifting to others, save andexcept among themselves and their descending heirs.
The first question was whether the will created a valid fideieommissum, which was answered in the affirmative. The secondquestion was whether the fidei, eommissum attached to a sharepurchased by Edward from David or whether Edward was free todispose of it outside. The learned District Judge held that Edward’salienation of that share to the plaintiff’s predecessor in title wasvalid.
H, V. Perera, for appellant.—The intention of the testator wasto keep the property in the family. The language used showsthat he intended to benefit the descendants for four generations.The prohibition against alienation is a real one as opposed to apersonal prohibition. It is meant to bind the property ratherthan the person. The legatees are permitted to alienate theproperty among themselves, but alienation to a stranger isspecially prohibited. The provision that the legatees and theirdescending heirs are to possess indicates that the prohibition bindsthe future generation. The decision relied on by the learned DistrictJudge (Naina Lebbe v. Marikar*) is only concerned with a case ofpre-emption. There was no indication there that the property wasto be preserved intact for the family.
Croos Da Brera, for respondent.—The legatees are permitted toalienate the property among themselves. This shows that thetestator while imposing a fidei eommissum intended to permitan alienation under certain conditions. Such a fidei eommissumis not foreign to the Roman-Dutch law. Once a legateesells to another legatee, the latter takes a fre& estate and a pur-chaser from him gets absolute title. That such was the intentionis clear from the absence of a prohibition against alienation inrespect of the legatee who buys. The policy of the law is infavour of a free and unfettered estate in the absence of a clear inten-tion to impose an entail. The prohibition is a personal one andbinds only a particular class. The fact that alienation ispermittedindicates that there was no intention to keep the property in thefamily. The fiduciary is allowed to alienate and thus defeat theexpectations of the fideicommissary. The wishes of the testatorhave been fulfilled when once the property has been alienated
1 22 N. L. R. 295.
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within the particular circle contemplated by him. There is nopenalty attached to the prohibition against alienation to strangers.A nude prohibition is worthless.
The share dealt with by the legatee was inherited by him from aco-legatee who died issueless. The fidei commissum has thereforelapsed. It cannot run outside an indicated degree. The rule ofjus accrescendi does not apply as there were three separate fideicommissa.
[Dalton J.—You have not raised this point in the lower Court.]
That will not prevent me from raising it here. All the necessaryfrets are in the record. It is a question of law.
Counsel cited 1 Maasdorp 168 ; 2 Burge 104, 105,114 ; 3 Nathan122; Sande on Restraints; Mcgregor's Translation of Voet,bk. XXXVI., tit. 1, sections 4, 5, 7, 27, 28, and 29; Carron v.Manuel1; Usoof v. Rahimath2; and Piunwardene v. Fernando ?
H. V. Perera, in reply.
December 21, 1928. Dalton J.—
Two matters arise in this partition case as it came before the lowerCourt. The first was whether or not a valid fidei commissum,created by the will P 1. That question was decided by the trialJudge in favour of the fidei commissum, and it is not questionedby either side on the appeal. Alienation was prohibited save tomembers of the class mentioned in the will, that' is, the legatees andtheir heirs.
The second point arises out of a conveyance by one of the heirsnamed Edward. He acquired an interest in the property underthe will, but he in addition also acquired a share by conveyancefrom David, one of his co-legatees. Edward’s interests passed bysale and conveyance eventually to the plaintiff. It is urged for him(plaintiff) that the share which Edward acquired from David bypurchase is free of the fidei commissum, inasmuch as the prohibitionagainst alienation was personal to the legatees mentioned in the will.The trial Judge has so decided on the footing that he is bound by thedecision in Naina Lebbe v. Marikar,i That is a case of a deed ofgift of land to three brothers, the deed providing that “ if they liketo alienate or encumber their share by any deed such as mortgageor transfer they shall do so between themselves and not with others.”The Court held that the prohibition was personal to the donees andplaced no burden on the land. The trial Judge has expressed somedoubt in his judgment as to the applicability of this authority to thecase before him. A somewhat similar case to that 6f Naina Lebbe v.
1 17 N. L. R. 407.
1 20 N. L. R. 225.
s 21 N. L. R. 65.
4 22 N. L. R. 295.
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' Marikar (supra) arising oat of a will is afforded by Du Plessis v,
. SmaHberger,1 although the exact point arising here was not decidedthere. Hie report is not available here, but it is referred to. hidetail in Mcgregor’s Translation of Voet, bk. XXXVI., in the noteon page 70. There was there a bequest of land' to three children/who were prohibited from selling to strangers but were bound tosell to their co-legatees. In discussing this case the learned com-mentator goes on to discuss the very point now arising. He asks'/he question: “ Where a legacy, say a farm, is left to three sons,,subject to the proviso that they shall not sell to a stranger but onlyto a oo-legatee, is this obligation binding on a legatee in respect ofa share of the fann acquired by purchase from one of the co-legateesin terms of the obligation aforementioned, or has he free andunfettered ownership in that share even though all the co-legateesare still living 7” He says the answer is supplied by Voet at theend of section 27 of the 1st title of this book. The prohibitiononly attaches to the share acquired from the testator and not to anyshare he acquired from a co-heir. ' And he adds these words “ unlessthe intention of the testator appear .to' be otherwise.”
It is quite clear that the terms of the will P 1 are very different tothose in the will in Du Plessia v. Smallbergerawpra). The propertyin question is not left to certain persons named, but to them and totheir descending heirs. There is elsewhere also a very clear intentionexpressed that the shares bequeathed shall not go to an outsider.The questions of personal and real prohibitions in the case of fideicommi8sa have been considered in the authority followed by thetrial Judge and might have afforded him help in coming to theconclusion that the doubt he expressed had very good foundation.The case is quite distinct from that before us on the facts. Bothlearned Judges carefully distinguish the case before them from a fideicommiasum. '■ De Sampayo J. points out that the provision in thedeed has no analogy to the well-known form of fidei commiaaum whichis created by prohibiting alienation outside the family. And that,it seems to me, is what the prohibition is in the case before us.Schneider J. citing Voet (bk. XXXVI. 1 28) points out if the fidei com-miaaum is a single one, the prohibition is personal; if it is “recurring,”the prohibition is real. “ In the former case, where it has operatedonce, the fidei commiaaum is at an end, while in the latter the prohi-bition recurs from grade to grade of fidei commiaarii." Whether ornot the fidei commiaaum is “ single ” or “ recurring ” is a questionto be answered by reference to the terms of the will and the intentionof the testator expressed therein, for, as Voet points out, a fideicommiaaum left to a family may be one or the other, and in the caseof.doubt will be decided in favour of the lesser burden on theproperty. . Having regard to the terms of the will here, it seems to
1 3 Seorle 38S.
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' me that the fideicommissary obligation is not determined by onerestitution to the family, but that the testatrix has in definite termsgiven expression to her intention to create, and has created, arecurring fidei commismird within the members of the family shenames and their heirs> I am not able to find any intentidn to create,as was argued before us, three separate fidei commisaa in respect ofthe three separate bequests' set out in the fourth paragraph of thewill.
The appeal must therefore be allowed with costs, the order of thetrial Judge being set aside. The case will therefore go back for theshares of the parties to the action to be estimated on the basis ofthe conclusion now come to. Appellant is entitled to the costs ofthe contest on this point in the lower Court.
Driebebg J.—I agree.
SOPINONA v. ABEYWARDENE et al