062-NLR-NLR-V-37-VANDERSTRAATEN-v.-EATON.pdf
294
Vanderstraaten v. Eaton.
1936
Present: Dalton S.PJ., Akbar and Poyser JJ.
VANDERSTRAATEN v. EATON.
67—D. C. (Inty.) Kandy, 5,127.
Inheritance—Uncles and aunts—Includes those of half blood—MatrimonialRights and Inheritance Ordinance, No. 15 of 1876, s. 35.
The expression “ uncles and aunts ” occurring in section 35 of theMatrimonial Rights and Inheritance Ordinance includes uncles andaunts of the half blood.
ASE referred to a Bench of three Judges on a construction of section
^35 of the Matrimonial Rights and Inheritance Ordinance. The
question arose on the administration of the estate of the late Eva Eaton,who died unmarried, intestate and without issue. The point for deter-mination was whether the words “ uncles and aunts ” in the section meanuncles and aunts of the full blood only or whether they include uncles andaunts of the half blood.
H. E. Garvin (with him Ameresinghe and Mackenzie Pereira), for appel-lant.—Some of the respondents are the descendants of the paternal grand-father of the deceased by a second marriage. By a third marriage, there isalso a child of the paternal grandfather of the deceased, who is a step aunt.We say that the respondents of both categories do not succeed. Thelearned Judge is wrong in holding that the respondents are entitled tosucceed. The question of heirship must be regulated by the provisions ofOrdinance No. 15 of 1876. The Common law does not apply, the legis-lature has not adopted the Common law so far as this particular point isconcerned; no doubt in the case of an omission one is entitled to lookinto the Roman-Dutch law, but this is not a case of omission. Here thereis a deliberate departure from the Common law. Prior to the OrdinanceNo. 15 of 1876, the rules of intestate succession as obtaining in NorthHolland as laid down in the Placaat of 1599 (vide Vanderstraten’s Appendix,page 17 at 20), obtained in Ceylon. Ordinance No. 15 of 1876 adopted someof the provisions, and disregarded others. In section 35, provision ismade for children of the half blood, uncles and aunts are provided for,no provision for uncles and aunts of the half blood. Section 35 clearlyshows that the legislature changed the Common law and omitted uncles
C
DALTON SJ’J.—Vanderstraaten v. Eaton.
295
and aunts of the half blood from participating. Uncles and aunts referredto in the section can only mean the brothers and sisters of the parents.They cannot include half uncles and half aunts.
H. V. Perera (with him Van Geyzel), for respondents.—One cannotdisregard the source from which the legislature has taken the provisions.The law of North Holland drew no distinction between the full and halfblood; for the purposes of inheritance, these were treated alike. Verystrong reasons must be urged in order to justify a departure of the under-lying principle, an uncle is an uncle whether an uncle or a step uncle.One cannot treat the two differently. In principle the law of North Hollanddiffered from the law of South Holland. According to the South Hollandlaw, the devolution of property was based on the principle that theproperty should go back to the source from whence it came, the half bloodalways taking with the half hand—vide Grotius II., 28, 6; Lee’s Roman-Hutch Law, p. 359.
Section 35, uncles and aunts failing, provides the inheritance for theirchildren, also great uncles and aunts to be with them per capita. Thisfurther supports the view that uncles and aunts include those of the halfblood.
February 12, 1936. Dalton S.P.J.—
This appeal, which has been referred to a Bench of three Judges, raisesa question of construction of section 35 of the Matrimonial Rights andInheritance Ordinance, No. 15 of 1876. The question has not been aneasy one to answer, but the argument of counsel has been of great assist-ance to the Court. In the reference to this Court we are asked to saywhether the expression “ uncles and aunts ”, where it occurs in section 35,includes uncles and aunts of the half blood.
The question arises out of the administration of the estate of the lateEva Eaton, who died unmarried, intestate and without issue. She leftsurviving her the following groups of relatives: —
The descendants of her father’s full brother, Archibald Eaton, her
father and this uncle being children of her paternal grandfather
by his first marriage.
Certain full brothers and sisters of her mother and children of
deceased brothers and sisters of her mother.
Descendants of her paternal grandfather by his second marriage,
called in the course of the case descendants of step aunts.
A child of her paternal grandfather bv v' .r-ird marriage, also called
in the course of theuip- aunt
It is conceded that the perse:;-. out i/i groups (1) and (2) are heirs ofthe deceased, uimor the provisions of section 35 of the Ordinance. Thequestion to be answered is whether the persons in groups (3) and (4) arealso entitled to succeed as heirs, being an aunt of the half blood anddescendants of aunts of the half blood only. Do the words “ uncles andaunts ” in section 35 mean uncles and aunts of the full blood only, or dothey include uncles and aunts of the half blood?
296
DALTON S.P.J.—Vender sir aaten v. Eaton.
The learned Judge in the lower Court has decided the question by-applying the Common law, under the provisions of section 40 of theOrdinance, coming to the conclusion that section 35 is silent as to therights of the half blood, and therefore he holds that the law of the NorthHolland, as set out in the Placaat of 1599, governs the case. He decidesthe question in this way, but appears to be of opinion also, though notdeciding the question on that ground, that the words “ uncles and aunts ”as used in section 35 include uncles and aunts of the half blood. If he isof that opinion, and if it is correct, there is no room for the application ofthe provisions of section 40 of the Ordinance.
The law of inheritance which was applied in Ceylon, prior to theOrdinance No. 15 of 1876, from the year 1822 up to 1871 is found in theAasdoms law, the law of North Holland, as set out in the Placaat ofDecember, 1599 (see Dona Clara v. Dona Maria'). In 1871, however, theAppeal Court judgment of this Court in C. R. Colombo, 76,626 (Vander-straaten’s Reports 172) threw doubt upon the question, indicating thatthe South Holland law (Schependoms law) was in force here. It is ofinterest to note that both South Africa and British Guiana had in thecourse of time suffered from similar difficulties. The decision in thematter under consideration in 1871, however, was the same, whicheverlaw was applied. The question was settled by the enactment of Ordi-nance No. 15 of 1876. So far as it deals with the question of inheritance,it enacts with one or two amendments the provisions of the law of NorthHolland as set out in the Placaat of 1599, and provides in section 40 thatin all questions relating to the distribution of the property of an intestate,if the Ordinance is silent, the rules of the Roman-Dutch law as it prevailedin North Holland are to govern and to be followed.
Section 35 of the Ordinance is as follows: —
“ All the persons above enumerated failing, the inheritance goes firstto the nearest in the ascending line per capita, although it should happenthat on the one side both the grandfather and the grandmother, and onthe other side only one of these parents should be alive. Afterwardsto uncles and aunts and the children of deceased uncles and aunts perstirpes. Uncles and aunts failing, then to their children and also greatuncles and aunts with them per capita ”.
The North Holland (Aasdoms) law on this question is set out insection 9 of the Placaat of December 18, 1599, which is in the followingterms, following the translation in Vanderstraaten’s Reports: —
“ 9. All the aforesaid persons being extinct, in such cases unclesand aunts shall succeed per capita and with their children in the firstdegree by representation, to all the goods without any distinction,whether the uncles and aunts are related to the deceased’s father andmother from half or full blood ”.
The next paragraph is as follows: —
“ 10. In case there may be no uncles and aunts, those who arenearest related to the deceased by blood shall succeed per capita to allthe goods without any distinction whether or not the relationship is
1 (1822) Ramanalhan's Reports 33.
DALTON S.P.J.—Vanderstroaten v. Eaton.
297
descending from the full or half brothers, or sisters; and accordinglygrand uncles and grand aunts together with full cousins shall succeedand divide the same per capita
The argument advanced before us on behalf of the appellant, theadministrator, was that one must look to the words used in section .35of the Ordinance to answer the question before the Court. That sectionomits any reference to uncles and aunts of the half blood, and it must, itis argued, in the circumstances, be taken to show a definite intention tochange the law; that the language of the section is plain and the words" uncles and aunts ” normally mean a father’s or mother’s full brothersand sisters.
In construing section 35 of the Ordinance one is entitled to look at thelaw whence the provisions of the section are derived, for it is relevant tothe question to ascertain whether, on the subject of inheritance, theOrdinance is re-enacting the Common law (the law of North Holland) oramending it.
Under the old North Holland law there was no distinction between thewhole and the half blood, whereas under the South Holland law, on theprinciple that the property must go to the side from whence it came(Grotius II., 28, s. 6) the half blood always took with the half hand. Ithas been pointed out by Professor R. W. Lee (Roman-Dutch Law, p. 359)that the Placaat of 1599, in trying to supply a Common law for NorthHolland, made changes in the old Aasdoms law in the direction of theSchependoms law, whereas the Ordinance of 1580 departed from the oldSchependoms law, in one respect only, namely, to restrict representationin the collateral line to the fourth degree. Subject to the changes madein 1599, however, the underlying principle of the North Holland lawremained the same. Under the North Holland law then, all earlier heirsfailing, uncles and aunts succeeded per capita, whether they were of thehalf or whole blood. This is enacted in section 9 of the Placaat, whichmade no change in the latter respect from the old Aasdoms law.
It has been suggested that the draftsman of Ordinance No. 15 of1876, presumably the Attorney-General of the day, when he came to framesection 35 of the Ordinance, intentionally omitted the words “ whetherthe uncles and aunts are related to the deceased’s father or mother fromhalf or full blood ” from the section, and intended to provide for unclesand aunts of the full blood only. I have no doubt, having regard to theunderlying principle of the old law, that had he intended to make thatchange, he would have made it in clear and express terms. No reasonhas been advanced why in this section it should be thought desirable tomake such a change; on the other hand, if any such change hasbeen made, the effect has been to cut out uncles and aunts of the half bloodaltogether, since by section 35 uncles and aunts failing, the inherit-ance falls to their children and also great uncles and aimts with themper capita, there being no succession here by representation beyondthe fourth degree.
It has been noted in the lower Court that Van der Linden (Institutes,bk. I., chap. X s. 2) in commenting upon section 9 of the Placaat of1599 refers to the succession of uncles and aunts and their children of the
298
Rodrigo v. Abdul Rahman.
first degree by representation, but omits any reference to the whole orhalf blood. It has been suggested that this reference may be the sourceof an error on the part of the draftsman of section 35 in omitting anymention of the half blood. I do not think there is anything in thissuggestion. The words used by Van der Linden make it plain that, whendealing with the law of intestate succession, uncles and aunts whether ofthe half or whole blood are included in the words “ uncles and auntsThe addition of the words in section 9 of the Placaat referring to half andwhole blood is, if any explanation is required, by way of parenthesis.The omission of the words in section 35, in my opinion, effected no changein the law at all. If the draftsman had Van der Linden before him,he was no doubt using the words in exactly the same way and with thesame meaning as Van der Linden.
Although the learned Judge has decided the question before him withthe same result, but on other grounds, there is, in my opinion, noroom in this case for the application of the provisions of section 40 of theOrdinance.
I would therefore answer the question in the reference as follows : Theexpression “ uncles and aunts ” occurring in section 35 of OrdinanceNo. 15 of 1876 includes uncles and aunts of the half blood. The appealtherefore fails.
In my opinion, this is a proper case in which the costs in the lower Courtand of this appeal should be paid out of the estate.
Akbar J.— I agree.
Poyser J.—I agree.
Appeal dismissed.