1895.October 0and 15.
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1867, which declared them entitled to an undivided one-half ofthe premises ; that thereafter the plaintiffs therein and Sarolominapossessed the same jointly ; that Frederick Beckkenhoff diedunmarried and intestate in 1882, from which date the 1st and 2ndplaintiffs possessed an undivided half and Sarolomina the remain-ing half; that Sarolomina died childless in 1892 leaving a lastwill made conjointly with her second husband Anjou, wherebythey appointed the first and second defendants their executorB;and that these defendants claiming title to the entire property,had ousted them from their share of possession.
The defendants denied that any Jidet commissum was createdunder the will of Evekenel, or that upon Sarolomina’s death with-out issue the whole property devolved on the plaintiffs, or thatthe decree in suit No. 45,398 bound Sarolomina. They furtherpleaded that Evekenel had no right to dispose of by her last willmore than a half share of the premises; that the other half belongedto Sarolomina by right of inheritance from her father Franfois,who died intestate after marrying Evekenel ; that only a halfshare of the premises passed to the devisees under the will; thatSarolomina, one of the three devisees, was entitled to one-thirdof the half or one-sixth of the whole; that she was furtherentitled to an additional one-twelfth by inheritance from herbrother Johannes ; that all the shares aggregated nine-twelfths orthree-fourths of the entire house ; that Sarolomina and her secondhusband Anjou left a last will by which they devised the residueof their estate (including the three-fourths share in question) tocertain persons who were entitled to the same ; that the first andsecond defendants were executors appointed under that will; andthat the third defendant was their tenant.
In the event of the Court holding adversely to this view,defendants contended that Sarolomina was entitled to at least anabsolute half of the said premises.
The Acting District Judge (Mr. J. Grenier) gave judgment forplaintiffsas prayed.
The defendants appealed.
Dornhorst (with Sampayo), for defendant appellant.
Peirit (with Van Langenberg and* Baiva), for plaintiffsrespondent.
Cur. adv. vult.
( 313 )
^5th October, 1895. Bonser, C.J.—1896.
This case arises on the will, made in 1825, of a Dutch lady who®
died in 1829.—
At the date of her will she was possessed of a house in Colombo ®OT8m'and was twice a widow. By her first husband she had living twochildren, Johannes and Isaac ; and by her second husband onechild, Sarolomina, who afterwards married one Anjou.
The testatrix, by her will, which was drawn by an illiterateDutch notary, after giving some trifling gifts of jewellery andfurniture to her daughter, proceeded as follows :—
“ The testatrix further declares that her house No. 5, situated and“ lying in Land street in the Pettah of Colombo, shall not sell“ or alienate, but be possessed by her children and their descen-'-“dants." Proceeding to the institution of heirs, she declares to“nominate and institute her children, Johannes Simons and Isaac“ Augustinus Beckkenhoff, procreated by her first marriage with Mr.
“ Christian Beckkenhoff, and Sarolomina Welhelmina Frangois, by“her second marriage with Mr. Engelbert Otho William Francois,
“ to all the residue and remainder property whatsoever which she“shall leave behind, equally to be divided and possessed amongst“ them without any molestation of any person whatsoever.”
It appears that Johannes died in 1849 childless, but leaving awill, by which he demised all his property to his widow, whoclaimed to be entitled to one-third of the said house. This claimwas resisted by the surviving brother and sister, but ultimatelythe claim, and a suit which had been instituted in the DistrictCourt of Colombo, were compromised by an agreement, wherebyIsaac and Sarolomina granted to the widow the usufruct of aportion of the premises during her life, with a proviso that on herdeath it was to revert to them and their heirs and descendants.
In 1865 Isaac died, and the respondents are his children.
Shortly after his death litigation ensued between the respondentsand Sarolomina and her husband, which resulted in a decree beingmade, by consent, giying each party a half share in the house.
It will be seen that on both these occasions the existence of aftdei commissum rendering the house inalienable was successfullyasserted. Moreover, Sarolomina’s husband afterwards became in-solvent, and in his schedule of assets included the life rent,belonging to his wife, of one moiety of the said house, thusrecognizing the fidei commissum.
In 1892 Sarolomina died a widow, without issue, leaving a will,which did not mention this property ; and the appellants, herexecutors, entered into possession of the house, excluding therespondent from any share therein. Now, however, they limitVOL. I.2 8
( 314 )
18*6. their claim to a moiety. They claim Sorolomina’s one-third ana0et^"i9 one-half of Johannes’s one-third.
etui IS.
The respondents, on the other hand, claim the entirety of the
Bomb, CJ' premises, as being the only extant members of the class—“ the“ descendants of the children of the testatrix."
No special words are necessary to create a fidei commissum, bnteffect is given to a fidei cotnmissum if it can be collected from anyexpressions in the instrument that it was the testator’s intentionto create it. (2 Burge, 106.)
That the prohibition against alienation created a fidei commie-sum is not disputed by Mr. Dornhorst, who argued the case for theappellants, bnt, as I understood him, he contends that the willcreated three independent fidei commissa, each of an undividedone-third share of the house in favour of each child and hisdescendants; that when Johannes died without issue his sharepassed by his will to his widow, who, in ignorance of her rights,abandoned her share to Isaac and Sarolomina; and that nowSaralomina is dead without issue, her one-third share, together withthe one-half of Johannes’s share, forms part of her estate, andpassed to the appellants.
In my opinion this is not in accordance with the intention of thetestatrix. Although the will is very badly expressed, yet I thinkthat it sufficiently appears that the testatrix intended the houseto be enjoyed as a whole by her three children and their descend-ants as long as the law allowed, that is, for four generations.
In these cases general rules are often unsafe guides, and theonly true criterion is the intention of the testator to be gatheredfrom the will and the circumstances. Praesertim cum voluntasfideicommittentis potissimum spectari debeat, ac observari; ticut generates illce de fideicommissorum interpretations regulcescope quidem mum inveniant, sed et scope fallaces tint (Voet,XXXVI., 1, 72).
The interpretation put upon the will by Mr. Dornhorst woulddestroy what I consider to have been the intention of the testa-trix, that the property should be enjoyed by her children andtheir descendants as long as the rules of law permitted; for inthis case the result would be that at the end of the first generationonly one-third of the property would have been possessed by thedescendants of the testatrix’s children.
We were referred to a case in 8 S. C. R. 158, Tillakaratne v.Abcijesekara, but that case is distinguishable from the present case.There a division of the property was contemplated by thetestatrix, for she expressly dirscted it to be divided; here thetestatrix dealt with the house as an integral unit.
( 315 )
In the view I take of this case, Ordinance No. 21 of 1844 does notapply, nor is there any question of jus acerescendi. The state-ment in Voet. XXXVI., 1,29, ad Jin (“Jidei commissi petitio compe-tit omnibus, qui exfamilia deque propinqui sunt, aut ex reprcesenta-tione pro deque propinquis habentur cxclusis illis, qui remotioressunt ”) would seem to be applicable to the present case, if wesubstitute for family the phrase “ the descendants of the children“ of the testatrix.”
But whether this construction be the trne one or not, it hasbeen acted upon for now nearly seventy years ; it has formedthe basis of family arrangements and compromises; and ought not,at this distance of time, to be disturbed.
The appeal will be dismissed with costs.
Withers, J.—
This is a clumsily expressed will in regard to that portion of itwhich refers to the property in dispute.
What was the intention of the testatrix in regard to the dis-position of the premises, and ha3 that intention been given effectto in the will ?
I think there can be little doubt that it waB the intention ofthe testatrix to impress a Jidei commissum on the property, inthe interest of the three children and their descendants, for suchtime as the law might allow to be possessed by them, and noothers.
The direction that the children and their descendants shouldnot sell or alienate it, in itself created a Jidei commissum, andin my opinion the children appointed heirs for the residue ofthe testator’s estate took that property subject to the Jideicommissum.
I further think that the property was to be kept as an indi-visible trust.
But, whatever may have been the intention of the testatrix, ithas been so clearly construed and acted upon by the partiesinterested for so long a time, that we cannot possibly disturb thearrangement.
It was clearly understood by the late Sarolomina and Isaac thatthe survivor should hold the entire premises for the purposes ofthe trust. This involved the operation of the jus acerescendi,whether that was or wa$ not intended by the testatrix, and theplaintiff’s descendants are clearly entitled to hold the entirepremises for themselves and in trust for their descendants, if any,after them.
1896.OeMer9and U.
Boxsn, CJ.
Witbebs, 3.
( 316 )
1896. It was strenuously contended, however, by Mr. Dornhorst, thA"°°*&U8 *ennre ^e premises by Isaac and Sarolomina should be
' governed by the provisions of the Ordinance No. 21 of 1844, and he
Withsbs, J. ciaime(i a declaration that they were tenants in common ef thepremises in equal undivided shares. Even if that Ordinance hasa retrospective operation, I do not think it applies to this casein the existing circumstances.
If one thing is to be preserved intact and disintegrated for thebenefit of coming persons, then the tenants for the time being,while the seal of the jidei commissum is still upon that thing,with possibility of succeeding beneficiaries, must be consideredas tenants to whom the rule of jus accrescendi is applicable, inorder to serve the express purpose for which the jidei commis-sum was created, and the operation of the Ordinance will besuspended till either there is no possibility of succession, or tillthe term fixed for the jidei commissum has expired.
In this case, for instance, if the three children appointed fideicommissaries and fiduciaries for their children were presentlyalive, and had reached an age beyond all possibility of issue,or if Isaac and Sarolomina were the two surviving descendantsin the fifth generation, then, in the absence of an express pro-vision by the testatrix, that the three children in the first case orthe surviving children in the fifth generation in the second casewould hold the property as joint tenants with benefit of survivor-ship, the Ordinance, if retrospective, would operate to makethe tenure one in equal undivided shares.
It is the constitution of the jidei commissum in this case whichdifferentiates it from Tillakaratne v. Abeyesekara in 3 S. C. JR.77, 158.
I still think that the Ordinance would apply (even when theterm of the jidei commissum was subsisting) in all doubtfulcases, so that a tenure would be deemed to be one in common ifor the benefit of each tenant’s descendant, and not a joint tenurewith & jus accrescendi to the survivors or survivor.
The appeal therefore, in my opinion, fails, and should bedismissed with costs.
bbowke, a.j. Browne, A. J.
I have had the advantage of reading the draft judgments of myLord the Chief Justice and my brother.
Concurring entirely in their views as Jto the creation of a validjidei commissum and in their affirmance of the decree, I wouldadd only the suggestion that were the provisions of section 20 ofOrdinance No. 21 of 1844applicable to this will of earlier date than
( 317 )
the enactment, the creation of a fidei commissum such aa this, infavour of a family, should be regarded as an express provisionthat the survivor should become entitled even to the extent(wherein I venture to differ from my brother) that the benefitof survivorship would enure to the very last taker of the fourthgeneration.
As regards the intention of this testatrix, I regard her words,“my children and their descendants,” as differing in nowisefrom “ my children and my descendants.”
In the absence of any intention of division of the estate, in thefact of its concerning only the one family house, and in itsgreater simplicity of provisions, however ungrammatically orignorantly expressed, I regard this case as even a clearer indica-tion of intention to create a fidei commissum in favour of thetestatrix’s family, than the case wherein our judgment is reportedin 3 S. C. R. 158.
1896.October^and IS.
Bbowh*, A.J.