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Present: Garvin and Drieberg JJ.
VEERAPELLAI ». KANTAR et al.
135—D. C. (Inly.) Jaffna, 5,709.
Fidei commissam residui—Last will—Devise to husband—Right ofalienation.
Where a last will contained the following clause “ I bequeathto my husband all the immovable and movable property belongingto me …. to be possessed and enjoyed by him as soleowner thereof with full right of donating, transferring, or otherwisealienating the same …. And on the death of myhusband the properties should devolve on my elder brother as soleowner.”
Held, that the devise to the husband was subject to a fidei com-missum residui in favour of the brother.
Weerasinghe v. Rubeyat Umma1 followed.
PPEAL from an order of the District Judgeof Jaffna. Thefacts appear from the judgment. '
Hayley, K.C. (with Ramachandram), for administrator, appellant.H. V. Perera (with H. E. Garvin and Nadarajuh), for respondents.
October 2, 1928. Garvin J.—
The appellant is the administrator of the estate of his deceasedwife Sinnatangam. He applied to the Court as administrator forpermission to sell the immovable property of the estate to enablehim to pay the debts of the estate. His application was opposedby Murugupillai Kanapathipillai, the brother of the deceased. Thelearned 'District Judge made order authorizing the sale of 2 allot-ments of land “ in the first instance.” There can be no' greatobjection to this order in itself; but the appellant’s real grievanceis that it proceeds upon a determination that his rights under thelast will of his wife are limited to a life interest.
The objections to the application were—
(1) That in terms of the last will the appellant was required topay the debts of his wife’s estate out of his own funds orsurrender the benefits of the devise in his favour.
(2) That the last will gave to the appellant only a life interest inhis wife’s estate which was to pass at his death to herbrothers, the respondents to this appeal.
The first of these objections is manifestly untenable and wasrightly rejected by the District Judge.
1 (1913) 16 N. L. R. 369.
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The second is not a ground of objection to the sale of the propertyof an estate to liquidate the debts of the estate and should not havebeen entertained.^
Inasmuch, however, as it has been entertained and determined infavour of the respondent the appellant is entitled to ask that it bereviewed. The material portion of Sinnatamgam’s last will is as •follows:—
“ I do bequeath to my husband Veerappapillai, son of Arasappa-pillai, presently of Porto Novo, all the immovable and movableproperties belonging to me and situated at Karadive ….
to be possessed and enjoyed by him as sole owner thereof with fullright of donating, transferring, or otherwise alienating the same….And on the death of mysaid husband Veerappapillai
the properties should devolve on my elder brother Kanapathipillai….as sole owner thereof.”
It is urged that this must be construed as the devise of a lifeinterest to the appellant with the reversion to the respondent. Todo so would be to give no effect to the very emphatic expression ofthe intention of the testator that her husband was to have fullright of donating, transferring, or otherwise alienating the same.”It is quite possible to give this disposition as a whole an effect inaccordance with what appears to have been the testator’s intention.The language implies an intention that the devise to the husbandshould be subject to a Juki commissum residui. It is urged,however, that the direction that on the death of her husband “ theproperties ” shall devolve on her brother implies all her propertyand excludes the notion of the residue alone passing. The languageis extremely inartistic, but I do not think that these words createany insuperable difficulty. Had the .words “the residue” orequivalent words been used the matter would necessarily havebeen too clear for argument. The language of the will renders thepoint raised by counsel for the respondent arguable, but it is notsufficient to prevent effect being given to what appears to be theintention of the testator that what is to devolve on her brotheris the property or so much of it as is left undisposed of at the deathof her husband.
The language of the disposition and the facts in the case ofWetrasinghe v. Rubeyat Umma1 are on all material points indistin-guishable from the one now before us and the judgment is bindingon us.
The determination of the learned District Judge on this point isset aside, and the rights of the contestants are declared to be thoseto which each is entitled on the footing that the last will creates aJidei commissum residui.
1 (1913) 16 N. L. R. 369.
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The order made by the District Judge does not need to bemodified since it 'will be competent to the administrator to applyfor leave to sell further property should it be necessary to do so.
The appellant will have the costs of this appeal and of the contestin the Court below which will be paid by the objector, respondent.
Drcebbbg J.—I agree.
VEERAPILLAI v. KANTAR et al