( 313 )
TILLEKERATNE v. ABEYESEKEEE et al.
D. C„ Colombo, No. 2,925.[Judgment of the Privy Council.]Present:—The Lord Chancellor, Lord Watson,Hobhouse, Lord Macnaghten, Lord Morris,
Shand, Lord Davey, Sir Richard Couch.
Fidei commission—Construction—Descent of property^-Zm acoresoondi—Ordinances Nos. 21 of 1844,10 of 1863, 7 of 1871.
. Simon Gomes Appuhami and his wife Maria Perera Hamine madoa joint will in 1858, whioh contained the following clause :—
“After the debts whioh we have incurred have been satisfied, all“ the movable and immovable property belonging to us shall be“ possessed by the survivor of us ; after whioh the three ohildren“ of Ana Catherine Gomes Lama Etana (the deceased of our two“ ohildren), viz., Dona Johana Maria Abeyesekere Hamine, Don“ John Paules Abeyesekere Appuhami, and Dona Lcisa Abeyesekere“ Hamine, these three, and our second daughter Maria Martina“ Gomes Lama Etana, the three children of the aforesaid daughter,
“ and the second daughter shall divide into two and inherit“ according to custom, they and their descendants, and possess,
“ without interruption. Furthermore, if there remain any balance“ still due after our paying the said debts during our lifetime from“ the income of. the property, the same shall be paid by selling a“ land situated beyond the gravets at Colombo. Should there“ be a balance still remaining due, it is directed that the same shall“ be paid by selling a land situated at Colombo, whioh the ohildren“do not wish to retain ; and, moreover, after the said debt is“ satisfied, the other lands within the gravets of Colombo are“ created fidei commissum, so that they may not be sold, mort-“ gaged, or otherwise alienated ; and in order that the said power“ (fidei commissum) may be effectual, We direct that the heirs .“ shall pay to St. Joseph’s Churoh at Colombo the sum of five“ shillings a year.”
Two of the three grandchildren above-named survived both theirgrandparents, the testator and testatrix. The other, Don PaulesAbeyesekere, survived his grandfather, but predeceased his grand-mother, leaving him surviving his wife, Cecilia Perera Samarasinhe,and a daughter Isabella.
Isabella survived both her grandparents and died unmarried andintestate in 1883, leaving her surviving her mother. Plaintiff, ias .administrator of Isabella’s estate, brought this action to recoverher one-sixth share of the estate, of whioh the defendants werein possession, claiming to have succeeded Isabella’s father underthe law of fidei commissum.
Held, that the moiety settled upon the grandchildre i was subjectto one and the same fidei commissum, and that the bequest was notin the form of a disposition of one-third share of the whole to eachof the institutes, but of a gift of the whole to the three institutesjointly, with benefit of survivorship, and with substitution of theirdescendants.->
Held also, that Ordinances Nos. 21 of 1844, 10 of 1863, and 7 of1871 have in no way altered the law of fidei commissum.
For these reasons the plaintiff was held not entitled to recoverIsabella’s one-sixth share of the estate^
( 314 )
PPEAL from a judgment of the Supreme Court. The factsare sufficiently set forth in the judgment of the Privy Council.
Grackanthorpe, Q.C., and Rawlins^ Q.C., for the defendants,appellants.
No appearance for plaintiff, respondent.
The judgment of the Privy Council was delivered as follows, onthe 26th February, 1897, by Lord Watson :—
Simon Gomes Appuhami and Maria Regina Perera Hamine,two Sinhalese spouses, executed a joint will disposing of theirwhole estate, real and personal, in November, 1868, at which timetheir issue consisted of one unmarried daughter and three childrenof a daughter deceased. The marriage was dissolved by thedeath of Simon Gomes in 1865. His widow died in the year 1883.
By the will it was provided that all the property belonging to
the testators, after payment of the debts which they had incurred,
should be possessed by the survivor of them; after which “ the
“ three children of Ana Catherina Gomes Lama Etana (the deceased
“ of our two children), viz., Dona Johana Maria Abeyesekere
“ Hamine, Don John Paules Abeyesekere Appuhami, and Dona
Leisa Abeyesekere Hamine, these three, and our second daughter
“ Maria Martina Gomes Lama Etana, the three children of the
aforesaid daughter, and the second daughter shall divide into two
“ and inherit according to custom, and they and their descendants
“ possess without interruption. Furthermore, if there remain any
“ balance still due after our paying the said debt during our life-
“ time from the income of the property, the same shall be paid by
“ selling the land situated beyond the gravets of Colombo. Should
“ there be a.balance still remaining due, it is directed that the
“ same shall be paid by selling a land situated at Colombo which
“ the children do not wish to retain; and, moreover, after the
“ said debt is satisfied, the other lands within the gravets of Colombo
“ are created fidei commissum, so that they may not be sold, mort-
“ gaged, or in any way alienated ; and in order that the said power
“ (fidei commissum) may be effectual, we direct that the heirs shall
“ pay to St. Joseph’s Church at Colombo the sum of five shillings
“ annually.” Two other bequests are made by the will, but the
passage quoted contains the whole provisions which have any
bearing upon the matter of this appeal.
At the death of the surviving testator all the descendantsappointed nominatim to take in that event were alive, with ,thesingle exception of John Paules, the grandson, who had died in
( 315 )
November, 1868, leaving an only child, Isabella. Upon the deter-mination of the surviving spouse’s usufruct, it appears that probateof the will was obtained, and that thereafter their daughter enteredinto possession of the moiety destined to her, whilst one-thirdshare of the remaining moiety was possessed by each of their twosurviving grandchildren and by their great grandchild Isabella,who took the share of which her father was the institute.
Isabella died unmarried and intestate in October 1883, and theshare which she had enjoyed was taken possession of, and washeld by the appellants, Dona Maria and Dona Leisar her paternalaunts, until August, 1892, when the present action was broughtagainst them, before the District Court of Colombo, by therespondent, who is married to the widow of deceased John Paules.The action is in the nature of an ejectment suit; and the plaintiff’stitle consists of letters of administration duly appointing him toadminister the estate of his stepdaughter Isabella. His successmust therefore depend upon his being able to establish that at thetime of her death in 1883 a beneficial interest in the one-third ofthe moiety which is in question had vested absolutely in Isabella,and was descendible to her heirs ab intestate.
The Judge of the District Court, Mr. D. F. Browne, dismissedthe action ..with costs ; the learned Judge holding that the descentof the share in dispute continued, after the death of Isabella, to begoverned by the fidei commissum. On appeal to the High Courthis decision was set aside, and judgment entered for the respondentby Lawrie and Withers, J.J., who were of opinion that the sharehad vested absolutely in Isabella, unaffected by the trustsof the will. The case was heard in review by a Full Benchconsisting of Lawrie and Withers, J.J., together with Mr. D, F.Browne, acting as a Puisne Judge, when, all the learned Judgesretaining their original views, the order of the High Court wasconfirmed.
The present appeal having been heard ex parte, their Lordshipsthink it right to notice that in his first judgment Mr. Justice Lawrie.directed attention to the fact that neither in the respondent’s'plaint nor in the defence is there any averment to the effect thatthe lands in controversy are situated within the gravets of Colombo,although, if not so situated, they would not be within theterms of the fidei commissum. There is, no doubt, a defect of'averment upon that point; but, on the other hand, the pleadingerof botH parties appear to their Lprflships to be expressly framed -upon the assumption that the lands are within the fidei commissum,and, that according to its construction one way or another the 'rights of the appellants must be determined. Their Lordships
( 316 )
find that Mr. Justice Withers, in his original judgment, statesthat “ the lands referred to are within the gravets of Colombo, and“ are admittedly the subject of a fidei commissumand that the .opinions delivered on a re-hearing by the three learned Judges allproceed upon that footing, In these circumstances their Lordshipsare satisfied that the appellants are entitled to have the case disposedof upon the same footing in this appeal.
Apart from the provisions of certain Ordinances enacted by theGovernor of Ceylon, with the advice and consent of the LegislativeCounoil, to which they will subsequently refer, the conflictingclaims of the appellants and the respondent appear to their Lord-ships to depend, not upon any disputed principle of the Roman-Dutch Law, but upon the construction of that part of the willwhich regulates the destination of that moiety of the testators’estate which was devised to the three children of their deceaseddaughter and their descendants. If the will constitutes threefidei commissa, severally applicable to the shares destined to eachof these children, the respondent would be entitled to prevail;because in that case the descendants of John Paules-having becomeextinct in her person, the share of Isabella was unaffected by anysubstitution, and therefore belonged to her in fee. On the otherhand, if the entire moiety was the subject of the fidei commissum,the right of Isabella was, at the time of her death, burdened witha substitution in favour of the institutes and lineal descendants ofthe institutes, and no interest in the share which she enjoyed passed. to her heirs-at-law. There being no controversy raised in thissuit with regard to the moiety possessed by Maria Martina, thedaughter of the testators, it is unnecessary to consider whetherboth moieties of the estates are included in the fidei commissumor are subjects of separate fidei commissa.
Their Lordships have had little difficulty in coming to the con-clusion that according to the terms of the will the entire moietysettled upon grandchildren is made the subject of one andthe same fidei commissum. The bequest is not in the form of a dis-position of one-third share of the whole to each of the institutes,but of a gift of the whole to the three institutes jointly, with benefitof survivorship, and with substitution" of their descendants.Following the terms of the gift, the substitution must be read asreferring to the whole estate settled upon the institutes as a class.The words “ and inherit according to custom” were obviously notmeant to imply that the estate was to devolve in terms of law,-soas to defeat the interests of heirs-substitute. They refer to thesuccession, not of the substituted heirs, but of the institutesp andsimply indicate that the shares bequeathed to them are the same
( 317 )
which they would have taken had there been no will. TheirLordships are accordingly of opinion that no right of successioncould arise, on her decease, to the heirs-at-law of Isabella, who werenot in the direct line of descent from the testators, so long as anyperson was in existence who could show the title either as aninstitute or as a substitute under the provisions of the will.
It appears to have been argued in the Court below on behalf ofthe respondent, that assuming the effect of the will to be thatwhich their Lordships have just indicated, the law has been alteredby Ordinances relating to the rights of joint tenants, so as to giveIsabella an absolute fee of the third share which she possessed. TheOrdinances relating to the matter of joint tenancy are No. 21 of1844, No. 10 of 1863, and No. 7 of 1871. Mr. Justice Lawrie doesnot refer to or rely upon any of these enactments as a ground ofjudgment; but Mr. Justice Withers was of opinion that, underthe provisions of the Ordinance of 1844, the destination of the willmust be regarded as a devise to tenants in common, sine, jureaccrescendi.
Section 7 of the first of these Ordinances enacts that when theowner of any landed property, or of an undivided share or interestin any such property, shall die after the Ordinance shall commenceand take effect, and two or more persons become co-proprietorsof undivided shares or interests in such property, whether underthe will of such deceased owner or as his heirs-at-law, it shall bethe duty of the executor or administrator to make partition ofthe property among all the persons entitled to shares or intereststherein, whether as devisees or heirs-at-law of the deceased.
Section 2 of the Ordinance of 1863 provides that, when landedproperty shall “ belong in common ” to two or more owners, itshall be competent to one or more of such owners to compel a: partition of the property, and also that, if partition be impracticable,the Court may direct a sale.
Section. 3 of the Ordinance of 1871 enacts that all property,whether movable or immovable, which any persons shall be possessedof or entitled to, in equal, undivided shares, as trustees, shallbe held by such persons as joint tenants, with the right orquality of survivorship between or amongst them in the samemanner as subsists between or amongst joint tenants by the Lawof England' notwithstanding anything by the Ordinances No. 21of 1844 and No. 10 of 1863 to the contrary provided.
Not* one of these enactments professes to deal with or alter thelaw of fidei commissum, and in their Lordships’ opinion they cannotbe ,construed as having that effect. The first and second ofthem appear to be limited to cases in which the persons•*«-! .
( 318 )
interested, whether as joint tenants or as tenants in common, arefull owners', and are not burdened with a fidei commissum; and evenif they were not held to be so limited, the partition which theyauthorize would not necessarily- destroy a fidei commissum attachingto one or more of the shares before partition. The Ordinance of1871 has no bearing upon the point, its enactments really beingintended to prevent a lapse of trust, title, and administration, inthe event of the death of one or a body of trustees holding equalundivided shares, although their title may not be that of jointtenants.
Their Lordships will humbly advise Her Majesty to reverse thejudgments appealed from and to restore the judgment of the DistrictCourt JudgeT- with costs to the appellants in both courts below.The respondent.must^pay-to jthe appellants their costs of this appeal.
TILLEKERATNE v. ABEYESEKERE et al