046-NLR-NLR-V-10-TILLEKERATNE-v.-SILVA-et-al.pdf

TILLEKERATNE v. SILVA et al
D.C., Matara, 3,804.
Joint W.Ul— Fidei commissum — Construction — Single fidei commissum
—Jus accresoendi—Survivorship.
A joint last will made by a husband and wife mrftried in com-munity of property, after giving the survivor of the spouses a' usufruct in the whole estate, provided “ that at the death of suchsurvivor, whilst possessing only ' the issues, rents, and profits of thisestate,all his said propertiesandhis debtsand credits,if any,
shall equally devolve 1 $25)8S))d ®2S))0££d&3Xsri ) on all the childrenthat we now have and those that we may hereafter get, or on suchof them as may then be living, and that the said children cannoteithersell, gift,ormortgagethepropertieswhich theyshall so
receive, and that the same shall devolve on their children and ,grandchildren unto generations/*
Held,that thewill createdonesingle fideicommissumover the
entire estate, andthaton the'deathof one ofthe childrenhis share <
devolved on the surviving children- according to the rule of jusaccrescendi.
Tillekeratne v. Abeyesekara 2 followed.v
t
T
HE facts are fully set out in the following judgment oft theDistinct Judge (T. R. E. Loftus, Esq.): —
“ The plaintiff in this case sues to be declared entitled to one-fifth of the land Kaluhalgodawatta. Parties admit that this land
i (1891) 1 S. C. B. 71.2 (1897) 66 L. J. P. C. 55; (1897) 2 N. L. B. 213.
( 215 )
formed one of the lands belonging to the late D. W. Tillekeratne,senior, and his wife, who executed a joint last will disposing of alltheir lands, including the land in question.
“ D. W. Tillekeratne, senior, and his wife died leaving six children,of whom the plaintiff is one, and the late D. W. Tillekeratne,. junior,another. In 1889 the six children executed a deed of distribution* of the land belonging to the estate of their parents. By that deedthe entirety of this land, among other lands, was allotted to the lateD. W. Tillekeratne, junior. He in 1893 leased the land in question-to defendant for a period of ten years commencing from 1st January,1900. In 1894 he granted a further lease to the defendant for aperiod of eighty-four years, and in 1897 he died.
" Plaintiff contends that the last will executed by his parentscontained a valid fidei commissum, and hence the leases executedby his brother, D. W. Tillekeratne, junior, were good only duringhis lifetime. He now claims one-fifth of the land under his parents’will.
“ The defendant in his pleadings denied that the will containeda valid fidei commissum, and further urged that, even if it didcontain a valid fidei commissum, such fidei commissum had lapsed bythe death of his lessor. The first issue, which was 1 Does the lastwill of the late D. W. Tillekeratne, senior, and his wife create a validfidei commissum ? * was not seriously contested.
“ Mr. Buultjens cited the judgment in appeal in D. C., Matara,No. 3,846, in which their Lordships held that the will executed bythe late D. W. Tillekeratne, senior, and his wife contained a validfidei commissum.
“ Mr. Kouneman informed the Court that he would not contend.that that judgment in appeal was wrong. He was free to admitthat the will contained a valid fidei commissum. His main argu-ment was that the will contained six different bequests, eachburdened with a fidei commissum.
“ Mr. Buultjens, for the plaintiff, argued that the will in questioncontained only one bequest to the six children jointly. He cited2 N. L. B. 313 and 8 N. L. B. 283 in support of his argument that thewill should be read as one joint bequest to the six children.
“ Mr. Keuneman, however, points to the Sinhalese words in the*will relating to the disposition of the property. They are ekakarakotas wasayen. He contends that those three Sinhalese wordscan leave no possible doubt as to the intention of the testators toconvey a ^divided one-sixth share of the entire estate to each child’individually!*
“*I have carefully perused the judgments quoted by Mr. Buult-jens, paying special attention to the translations of the wills referred;to. I, however, labour under the disadvantage of not having theoriginal Sinhalese wills before me to compare them with the willnow under construction.
1907.
April JO.
( 216 )
1907.“ In the present case I have the original Sinhalese will before me,
April 10. and j quite agree with Mr. Keuneman that the words kotas wasayenare no mere redundancy, as Mr. Buultjens would have me construethem, but contain the express wishes of the testator and testatrixthat each child should have a divided one-sixth of their estate.
44 My Interpreter Mudaliyar agrees with me that that is the onlypossible construction of the words ekakara kotos wasayen.
44 Ekakara, of course, means 4 equally *—in this case in sixths.The words kotas wasayen are used in contradistinction to theSinhalese poduwa, which means * in common ' or 4 jointly Thus,my construction of the will is that by it the testator and the testa-trix made six different bequests, with one clause providing for afidei commissum governing all six bequests.
44 Consequently, I cannot but hold that the fidei commissum inrespect of the late ,D. W. Tillekeratne, junior, one-sixth share haslapsed, and that the plaintiff, along with his four brothers andsisters, take ab intestato. The leases are therefore valid.
“ Plaintiff’s action is dismissed with costs.”
The plaintiff appealed.
Peiris (with him E. W. Jayewardene)t for the appellant.—The will when read as a whole can only be construed to containone bequest to the children of the testator burdened with one fideicommissum. The words used are not distinguishable from thoseconstrued by the Privy Council in Tillekeratne u. Abeyesekara,1and the ruling in that case should be followed. The fidei commissum. is created in favour of a class, viz.; the descendants of the testator;and it was clearly their intention to preserve the property in thefamily, The District Judge was wrong in his interpretation of thewords ekakara kotas wasayen. The expression kotas wasayen is hotthe opposite of the word poduwa as suggested by the District Judge.It has no reference to the mode of possession. It only means 44 inshares.11 The addition of the word ekakara makes' it mean 44 inequal shares.” If divided shares were meant, the Sinhalese wordsused would have been quite different,
S&mpayo, ‘ H.C., for respondent.—The expression used in thewill imports the idea of division and separate ownership, and itis submitted that this is not a case of a joint fidei commissum inrespect of the whole estate, but of a separate and distinct fidei com-misaum attaching to each legatee's share. This is borne out by thesubsequent acts of the legatees themselves when they entered intothe deed of partition, whereby the property in question was allottedto D. W. Tillekeratne. On the death of D. W. Tillekeratne withoutissue the fidei commissum failed, and the land became the absoluteproperty of his estate.’ Tillekeratne v. Abeyesekara;1 Gould v» Souza;2
>■ (1897) 2 N. L. R. 813.a (1902) 2 Browne 378.
( 217 )
Voet, 7, 1, 13;. Voet, 36, 1, 16. Even if the words merely mean *' inequal shares,” as contended by the appellant, the result is the same,for in suoh a case the legatees are joined verbis tantum, and thelegacies are several and not joint and there would be no jusaccrescendi. Voet, 36, 1, 71; Voet, 30, 31, 61.
Peiris in reply.—The deed of partition entered into by the originaldevisees cannot affect the fidei commissum. Once it is concededthat the will created a valid fidei commissum, such a deed can onlyaffect the mode of possession and could be operative only betweenthe parties to it. With regard to the argument that the jus accrescendidoes not apply in the case because here the conjunction is verbirtantum, it is submitted that the passages quoted from Voet do nofapply to this case, but have reference to the lapse of legacies beforethey vest in the legatees. Here there is a fidei commissum createdin favour of a class, and effect must be given to it irrespective of anyquestion of jus accrescendi.
Cur. adv. vult.
10th April, 1907. Wendt J.—
The plaintiff in this action seeks a declaration of his right topossess and enjoy an undivided fifth share of a land called Kaluhal-godawatta. To the second, third, fourth, and fifth defendants,who represent three of his brothers and his sisters, he alleges theremaining four-fifths to belong, and his complaint is that the firstdefendant, claiming under a fourth brother, now deceased, namedDionysius, keeps him out of possession. The land formed part ofthe common matrimonial estate of plaintiff's parents, who diedin 1867 and 1889 respectively, leaving a joint last will, upon theright construction of which the decision of this appeal depends.Their will, which was in Sinhalese, gave, the survivor of the spousesa usufruct in the whole estate, and then proceeded in clause 2 asfollows (I quote from the translation filed in the record):- “Andwe have hereby determined that at the death of such survivor,whilst possessing only the issues, rents, and profits of this estaterall his said properties and his debts and credits, if any,, (the Sinha- .lese words were ekakara kotas wasayen ayitikaradena hetiyataniyamakaranta yedunaya), shall equally devolve on all the childrenthat we now have and those that we may hereafter get, or on suchof them as may then be living, and that the said children cannoteither selk gift, or mortgage the properties which they shall soreceive, and* that the same shall devolve on their children andgrandchildren unto generations.”
At the death of the testatrix, who was the surviving spouse,,there were living six children of the marriage, viz., the plaintiffand Dionysius, and the four others represented by the second ’tothe fifth defendants. Eight months later these six children entered
1907.
April 10.
( 218 }
1907. into a deed of distribution, dated 20th December, 1889, wherebyApril 10. the lands of the estate were allotted among them in severalty, theWendt J. land now in question falling to Dionysius. The deed recited theprovisions of the last will, and confirmed the usual cross conveyanceswhich were made expressly subject to those provisions. By deeddated 8th October, 1893, Dionysius, leased this land to first defend-ant for a term of ten years, and by deed dated 8th February, 1894,for a further term of eighty-four years commencing from the.expiry of the term previously granted.
The parties are agreed that the devise to the children was subjectto a* fidei commissum, but while plaintiff contends that it was a' single fidei commissum of the entire estate to the devisees jointly,with benefit of survivorship and substitution of their descendants,the first defendant, who is the respondent to the present appeal,•contends that there were in effect six fidei commissa, each affecting;a direct one-sixth of the estate devised to one of the children. Onthe one hand plaintiff argues that so long as any one of the childrenor any descendant of any one of them survives, the fidei commissumeffecting Dionysius* one-sixth has not failed in default of his de-scendants. If plaintiff is right, he, as one of Dionysius' five brothers.and sisters, would be entitled to the enjoyment of the one-fifth whichhe claims of the land in dispute. If first defendant is right, Dionysiuswas entitled to dispose of the land as his absolute property, and hislease cannot be disturbed. The distribution of the lands among thechildren, while it might on the principle of Babey Nona v. Silva1limit the substituted heirs to lands allotted by the partition deed totheir respective institutes, need not here be considered in theAbsence of descendants of Dionysius. No such partition couldAffect the fidei commissum devolution in other respects.
The question before us is, in my opinion, governed by the•decision of the Privy Council in Tillekeratne v. Abeyesekara*There, too, the will gave the survivor a usufruct, and then, in effect,gave a moiety of the estate to a surviving daughter of the testatorsand the other moiety to the three surviving children of a deceaseddaughter, directing that the devisees " shall divide into two ” and** inherit according to custom, and they and their descendantspossess without interruption." At the determination of theusufruct, one of the three grandchildren being dead, his only child,Isabella, entered into possession of his share. She having diedwithout issue, her administrator claimed that share absolutely on4 the ground that the fidei commissum had failed for< l&ck of herdescendants—the same ground which the present first defendanttakes up. The Privy Council said: "Their Lordships have hadlittle difficulty in coming to the conclusion that according to theterms of the will the entire moiety settled upon the grandchildren ismade the subject of one and the same fidei commissum.
* (1906) 9 N. L.(R. 251.* (1897) 66 L. J. P‘. C. 55; (1897) 2 N. L. R. 313
( 219 )
“ The bequest is not in the form of a disposition of one-third shareof the whole to each of the institutes, but of a gift of the whole tothe three institutes jointly, with benefit of survivorship and withsubstitution of their descendants. Following the terms of thegift, the substitution must be read as referring to the whole estatesettled upon the institutes as a class. The words * and inheritaccording to custom ’ were obviously not meant to imply that theestate was to devolve in terms of law, so as to defeat the interestsof heirs-substitute. They refer to the succession, not of thesubstituted heirs, but of the institutes, and simply indicate that theshares bequeathed to them are the same which they would havetaken had there been no will. Their Lordships are accordingly ofopinion that no right of succession could arise, on her decease, tothe heirs-at-law of Isabella, who were not in the direct line of descentfrom the testators, so long as any person was in existence who couldshow a title either as an institute or as a substitute under theprovisions of the will.”
This decision was cited to the learned District Judge, but he heldthat the language of the present will was distinguishable from thatwhich the Privy Council considered, and disclosed “ the expresswishes of the testator and testatrix that each child should have a
divided one-sixth of their estateEkakara, of course, means
‘ equally '—in this case in sixths. The words kotas wasayen are usedin contradistinction to the Sinhalese poduwa, which means * in
common ' or 1 jointly 'Thus, my construction of the will is
that by it the testator and the testatrix made six different bequests,with one clause providing for a fidei commissum governing all sixbequests.” »He added that his Interpreter Mudaliyar agreed withthis construction. We have had the advantage of having the casevery ably argued before us on both sides by counsel who arethemselves Sinhalese gentlemen well versed in their native language,and in the* result we think that the defendant's interpretation of thewill cannot be supported. Ekakara certainly means “ equally,”kotasa (plural kotas) means “ a share.” It no more implies aphysical division than the English word “ share.” Kotas wasayenmeans according to shares or by way of shares. The exact equivalentof the whole expression would therefore appear to be “in equalshares.” The direction in the will then amounts to no more than thedirection in the Privy Council case that the legatees were to take inequal shares—it is a direction regulating the enjoyment of the institu-tes and themselves, and having no reference to the substitution on tb#death of the* institutes. The District Judge's idea that each childshould have a divided one-sixth is negatived by the words of the2nd clause of the will, which expresses the determination to “ makethem entitled ” on the death of the surviving spouse. This isequivalent to devolution, and of course such devolution could nbtbe in divided shares. It was argued that the jus accrescendi did not
1907.
April 10.
Wendt J.
( 220 )
1907. belong $o the surviving brothers and sisters o£ Dionysius, becauseApril 10. this was a case of conjunction verbis tantum, this estate being to theWendt J. devisees in equal shares; and Voet, 6ks, 80-82, ss. 58-68, was cited,and also bh. 86, 1, 71, together with the note at page 158 ofMcGregor's translation. 1 am not sure that those passages areapplicable, because they deal with the case of legacies in which oneof the joint legatees dies before the vesting of the legacy. In thepresent case Dionysius had entered into possession of his legacy.The question here rather is, whether the will had substituted any-body in his place in the event of his dying without issue after havinghimself taken the legacy. According to my reading, by the lightof the decision in Tilleheratne v. Abeyesekara, the will in that eventsubstituted the surviving legatees.
I think the decree of the District Court must be reversed andjudgment entered for the plaintiff as prayed, with damages at theAgreed rate of Rs. 5 per annum from the 9th January, 1904',until possession is given to plaintiff. The first defendant will paythe plaintiff's cost in both courts. * No costs of the other parties.
Middleton J.—
1 agree. The words at the end of the will, ** the same shall devolve•on their children and grandchildren unto generations," seem to meto negative the construction put on the will by the District Judge,and to support strongly the jus accrescendi in favour of thesurviving institutes contended for by the appellant.
Appeal allowed.
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