109-NLR-NLR-V-62-V.-T.-DE-SILVA-and-another-Appellants-and-P.-K.-RANGOHAMY-and-other-Respondent.pdf
de Silva v. Rangohamy
653
Present :Sansoni, J. and H. N. G. Fernando, J.V. T. DE SILVA and another, Appellants, and P. K. RANGOHAMY
and others, Respondents
S. C. 543—D. C. Matara, 21,360
%
Fideiccmmissa—Bequest to children— Si si no liberis docosserifc clause—Qift-over toCrown, if all the devisees should die issueless—Inference of intention to createfideicommissum, in favour of the grandchildren of the testator.
Whoro a last will bequeaths property to th© children of the testator, theprosonco thorcin of a si sine liberis decesserit clause—o.g., “ provided howeverthat on th© death of any on© of them leaving no issue, his or her share shalldovolvo on the survivor or survivors and their children ”—does not per secrcato a tacit fideicommissum in favour of the grandchildren of th© testator.In such a case it cannot be contended that when th© children referred to ina si sine liberis decesserit clause are descendants of the testator, then theclnuso itsolf, without more, is an indication of intention to include suchchildren as successors.
A last will bequeathod specified lands or shares in lands to the testator’sdaughtor, P—, and illegitimate son, S—, and bequeathed the residue to thelegitimate son, G. It contained the following clause :—
“ I give devise hoquoath all my residuary property of what kind or natureso over movable as well os immovable wherever found or situate untomy eldest son Lahanda Pur ago Geeris de Silva his heirs executors adminis-trators and assigns all of which said property thus bequeathed and devisedunto my aforesaid children shall be vested in them and the share of Geerisboing subject to the payment of my funeral and testamentary expensesprovided howevor that on the death of any one of them leaving no issuehis or her share shall devolve on the survivor or survivors and their childrenirrespective of the fact that the said Saudias is not a legitimate son of mine.Therefore if he should die without issue possessed of the legacy hereby leftto him tho same shall devolve on my two legitimate children and their heirsoxocutors administrators and assigns. All the said throe children dyingissueloss this ostato shall vest in the Government of Ceylon and half of thesame shall he oxponded for the advancement of the Buddhist religion ifthe Government so desires. ”
“ And any kind of property either movable or immovable that I mayhappen to acquire horoafter shall devolve on my said three children Saudias,Geeris and Paraneinahamy in equal shares. ”
Held, that the will did not create a fideicommissum in favour of thograndchildren of tho testator’.
24LXII
2—J. X- It 17020—2,533 (5/G1)
554
H. N. G. FERNANDO, J.—de Silva v. Hangohamy
Appeal from a judgment of the District Court, Matara.
H. W. Jayewardene, Q.C., with S. D. Jayasundera, for plaintiffs-appcllants.
N. E. Weerasooria, Q.O., with E. B. W ikramanayake, Q.C., andE. R. S. R. Coomciraswamy, for dcfcndants-rcspondents.
Cur. adv. vult.
January 23, 1961. H. N. G. Fernando, J.—
The land to which the plaintiffs claim title admittedly belonged toone Lahandapurage Lewis who left a Last Will dated 24th January1924, probate of which was granted in 1931. The plaintiffs’ claim isbased on the Final decree dated 19th October 1938 entered in aPartition action in which the existence of the Last Will was notdisclosed. The land was allotted by that decree to Geeris, a son of thetestator Lewis ; reciting his partition title Geeris transferred the landto his wife Rangohamy, who in turn sold the land to the plaintiffs bydeed ISTo. G532 of 4th July 1947. Among the many somewhat difficultmatters agitated at the trial were (a) whether Geeris had obtained titleto this land under Lewis* Last Will or else by an earlier oral or writtengrant, (6) whether because of the Partition decree the plaintiffs’ rightsare unaffected by any conditions in the Last Will, and (c) whether theterms of the Last Will are ineffective against the plaintiffs for want ofdue registration. It is fortunately unnecessary to consider thecorrectness of the Judge’s answers to those questions for they ariseonly if the Judge’s basic finding is correct, namely that the Last Willcreated a fideicommissum. in favour of some of the defendents who arethe children of Geeris. That finding being in my opinion erroneous, itsuffices to state reasons for the opinion which I have formed.
The Last Will bequeathed specified lands or shares in lands to thetestator’s daughter and illegitimate son and bequeathed the residue tothe legitimate son, Geeris. On the basis that the property now in disputecomprised part of the residue bequeathed to Geeris, the defendantscontended that it was subject to a fideicommissum in terms of the LastWill, and passed upon the death of Geeris to his children the 4th and7th defendants. The clause relevant for present purposes reads asfollows :—
“ I give devise bequeath all my residuary property of what kindor nature so ever movable as well as immovable wherever foundor situate unto my eldest son Lahanda Purage Geeris de Silva hisheirs executors administrators and assigns all of which said propertyboth movable and immovable thus bequeathed and devised untomy aforesaid children shall be vested in them and the share of Geerisbeing subject to the payment of my funeral and., testamentary
H. N. G. FERN AND O, J.—de Silva v. Rangohamy
expenses provided however that on the death of any one of themleaving no issue his or her share shall devolve on the survivor orsurvivors and their children irrespective of the fact that the saidSaudias is not a legitimate son of mine. Therefore if he should diewithout issue possessed of the legacy hereby left to him the sameshall devolve on my two legitimate children and their heirs executorsadministrators and assigns. All the. said three children dying issuelessthis estate shall vest in the Government of Ceylon and half of thesame shall be expended for the advancement of the Buddhist religionif the Government so desires. ”
“ And any kind of property either movable or immovable thatI may happen to acquire hereafter shall devolve on my said threechildren Saudias, Geeris and Paraneinahamy in equal shares. ”
The opinion of the trial Judge and the argument of counsel for therespondents were founded on the views expressed in Chapter 5 ofProfessor Nadaraja’s “ The Roman Dutch Laio of Fideico minis so ” andthe authorities there cited, to the effect that in certain circumstances“ a tacit fideicommissum impliedly arises in favour of the children ofa person who has been laid under an express fideicommissum in favourof somebody else ”. This implication,__it is stated, arises when thecondition of the express ..fideicommissum is if_th(^fiduciary should diewithout children, and when the gift-over_t o_t he designated fideicommissaryfails because the fiduciary does leave children surviving him. In sucha case, if there are indications that there was an intention to includethe children in the succession, then a fideicommissum should be impliedin their favour.
Thus far, the proposition is in accord with the basic principle thateffect must be given to the intentions of the. author of an instrumentand that an intention to create a fideicommissum can be manifested inother modes than that of expressly substituting the favoured class ofsuccessors. But the view taken by Professor bJadaraja goes further ;it is briefly, that when the children referred to in a si sine liberis decesseritclause are descendants of the author, then tlio clause itself, withoutmore, is an indication of intention to include such children as successors.The diversity of opinion on tins question has been referred to by Sandethus :“ There is among jurists no question more debated than this ;
it is a question very celebrated, very difficult- and almost unanswerable **.The conflicting opinions of the text-writers arc referred to and examinedin an interesting study by Mr. (formerly Justice) MacGregor in theSouth African Law Journal (Vol. 63 p. 265). Put briefly, the conclusionreached in this study is that, when the author of a disposition providesfor a fideicommissary substitution after the. lifetime of the deviseeor donee upon the condition that the fiduciary dies without children,the disposition evidences pietas in favour of the children if they bedescendants of the testator ; it is urged on that ground that from thissame motive of pietas the ascendant must bo presumed to have intendeda fideicommissary substitution of the descendant children, if any.
550
H. N. G. FERNANI> O, J.—de Silva v. Rangohamy
I certainly agree that this conclusion and the opinions on which itis based are quite reasonable and were worthy of acceptance by theCourts in Ceylon and South Africa when the law relating to fideicommissawas being considered and settled in the earlier judgments. But thefact that they did not gain such acceptance cannot now be ignored.The contrary view was upheld by Maasdorp, J. in Steenkamp v. Marais 1in 1908 and was followed in South Africa in subsequent decisions, twoof which are of later date than the MacGregor article. (Cf. 1935 C. P. 3D.
30 ;1939 C. P. ID. 144;1945 C. P. 3D.67 ; and also
Engelbrecht N. O. v. Engelbrecht en Andere 1958 (3) S. A. L. B. 571, at574, kindly translated into English by Mr. Advocate Herat.) It wasalso upheld in the Ceylon case of Asiathumma v. Alimanchy2 in 1905,although the disposition there considered was one inter vivos. This Courthas had in a long line of cases to examine numerous instruments whichwere claimed to have created fideicommissa on the ground that theymanifested the requisite intention or indications that such intention waspresent. But it is significant that in no case after that last mentionedhas the sine liberis decesserit clause been invoked in Ceylon in support ofthe proposition now contended for. The clause being not an uncommonone, the fact that it has not been so invoked very nearly convinces methat the profession and the conveyancer and indirectly the authors ofsuch instruments, have not regarded the clause as effective to burdenproperty in favour of descendants. To construe the clause differentlynow would be to alter wbat the Courts should regard as settled law ; inother words, if, as I think, only its plain meaning, and not its indirectimplication of benefit to the descendants, has been regarded as effective,the Courts should not at this stage regard the clause as having an effectwhich hitherto it was not expected to have.
Moreover, the reasoning that, because the survival of children of thedevisee will exclude the designated substitute, an intention to call suchchildren to the succession should be presumed, is not entirely convincing.Succession is of course the direct and highest benefit which an ascendantcan intend for his descendants ; but the intention might well be thatsome indirect and lesser or even uncertain benefit might accrue to thechildren, though not under or by virtue of the disposition. Might not theascendant merely have had the confidence that the devisee will transferor bequeath the property to such of his children as he may choose 13f, on the other hand, it becomes- very nearly certain that some or allof the children will survive the devisee, and that therefore the gift-overto the designated fideicommissaries will fail, the devisee may be ableto sell the property. But it would not necessarily follow that the childrenwill receive no benefit : the sale proceeds might well be utilized by thedevisee to educate or dower his children or in business investmentswhich may ultimately yield more profits to the children than couldhave been gained from the original property. A settlor’s intentioncannot be safely ascertained by arbitrary rules, and with respect itseems to be that the rule of construction now contended for would be to
i 25 S. O. 483.
a (1005) 1 A. G. R. 53.
H. N. G. FEENANDO; J.—de Silva v. Rangohamy
557
some.extent arbitrary,, if it were now to be adopted by Our Courts.. Letme take the case, of a Will in which the testator bequeaths his propertyin equal shares to his three sons,' to two of'them absolutely but to thethird son with a gift-over to that son’s children. True 'it is that thepietas in favour of grandchildren by. the third son is demonstrated inthe instrument. But would it be- proper to say of the testator that heentertains no pietas in favour, of his descendants by the other two sons ?I can best answer this question by reference to a. Will executed incircumstances which were within my personal knowledge. X had alarge, family and several legitimate grandchildren of whom her favouriteswere the sons of A ; her errant son B was unmarried, but had illegitimatechildren. X in her Last Will devised property, absolutely to A, but thedevise to her.son B was subject to gift-over in favour of B’s illegitimatechildren. X herself would have been much pained if, because of thisdistinction in her Will, she had been accused of. a lack of pietas in favourof A’s sons, her favourites. Such distinctions are often made, and they,are often referable not to an intention to discriminate as betweengrandchildren, but to fear of improvidence on the part of some deviseesand the absence of that fear in regard to the others. In the same waythe demonstration of pietas by means of a si sine liberis decesserit doesnot to my mind raise the necessary inference of an intention to callthe descendant children to the succession:
Having regard to these considerations, the omission of an ascendant toprovide for a gift-over to his grandchildren might well be explained asevidence of bis faith in the good sense and pietas of the devisee in theevent of his having children. At a stage when the law of this countryon the subject of the creation of fidecommissa appears to be fairly wellsettled and understood through a series of judgments, a Court cannotproperly assume that an ascendant entertained a fear that his son wouldbe improvident, except in a case where the ascendant has manifested thatfear in his disposition in some terms recognised by the settled law as beingeffective to avoid the risk of improvidence.
ITor these reasons, I am not disposed, by holding that a si sine liberisdecesserit clause per se imports a gift-over in favour of the childrenif tfiey be the author’s descendants, to disturb titles to land which havein all probability been regarded as sound.
It remains for me to consider whether there are, in the Last Will nowunder consideration, indications which, taken together with the si sineliberis decesserit clause, manifest an intention to make a gift-over to thegrandchildren of the testator. Counsel for the respondents has in thisconnection relied strongly on a clause in the Will that if all the threechildren of the testator die issueless the estate will vest in the Governmentof Ceylon. The existence of this clause certainly, distinguishes thepresent Will from that which was construed in the South African case ofSteenkamp v. Marais {supra), in like manner as the Last Will construedby Garvin, J. in Carolis v. Simon1 was distinguishable from the Steenlcamp
'(1929) 30 N. L. R. 266.
2*
. B. 17020 (5/01)
658
■ H. .N. G. FERNANDO, J.—de Silva v. Rangohamy
Will. But the existence of a similar clause in favour of the Crown was'not the decisive ground upon which the Will in Garolis v. Simon was heldto create a fideicommissum in favour of the testator’s descendants.' ThatWill expressly declared that the devisees, the children of the testatorshall not mortgage or convey the 'property in any way to anybody, and that** if at any time the generation of our children and grandchildren wereto be ruined without descendants the property should pass to the ruler ofCeylon. ” Garvin, J. thought that the prohibition against alienationwas meaningless unless the testator intended that the property shouldremain in the family and be enjoyed by their descendants. The apparentdefect in the Will was that, although there was a prohibition againstalienation by the devisees, there was neither an express designation of thepersons to benefit upon the breach of the prohibition, nor an expressprohibition binding those who might take after the devisees. Thisapparent defect was cured by the fact that the testators showed that theyhad in mind, not only their grandchildren but also their remoter descen-dants, and created a fideicommissum in favour of the Government onlyif the line of descendants should become extinct. The decision in Garolisv. Simon was thus only an illustration of a tacit fideicommissum createdby means of a prohibition against alienation coupled with a sufficientdesignation of the persons in whose favour the prohibition is imposed.The Will in that case is distinguishable from that which we are construing,for there is not in the latter any prohibition against alienation, nor anymention of any remoter descendants of the testator. I do not find init any indications of the testator’s desire that the property devised mustremain vested in his descendants.
There are on the other hand, counter-indications to which I will brieflyrefer. The devises to Lewis’ three children are in each case, to “ X,his heirs, executors, administrators and assigns ”. Does not this importan absolute gift to X, subject only to the condition that if X were todie issueless the property will pass to the other two devisees 1 If-thecondition of the gift-over is not fulfilled, will not the absolute title remainin X, his heirs, executors, administrators and assigns % Similarly, theexpress provision for the event of the illegitimate child dying issuelessis that his share “ shall devolve on my two legitimate children, theirheirs executors administrators and assigns ” ; the fact that this gift-overis absolute and not intended for the benefit of the grandchildren of thetestator is some indication that no such benefit was intended in theoriginal devises.
The action by the plaintiffs for declaration of title, ejectment anddamages must therefore succeed, and the record will be returned to theDistrict Court for entry of decree accordingly. As there is no finding uponthe disputed question of damages, evidence as to damages will be takende novo in the District Court and the amount of damages assessed. Thedefendants will pay to the plaintiffs the costs of action and of appeal.
Sansoni, J.—I agree.
Appeal allowed.