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Present; Wood Benton J. and Grenier J.
VYRUPULLE v. PEREEX et al20—D. C. Kandyt 21,026.
Last tuill—Direction to executors and trustees to give rents and profits tospecified persons—Executors directed to distribute, after death oflegatees, rentsand profits among“ widows, orphans,really
deserving destitutepeople of theBurghercommunity M—Vestingof
property on legatees—Property seized as belonging to legatees—Claim by trustee nominated by surviving trustee.
A testator byhis last -will gave and bequeathed to certain
specified persons all the rents and profits arising from his properties,and further directedthat the shareof therents ofthe legateeor
legatees dyingshosuid be distributed among the widows, orphans,
and really deserving destitute people of the Burgher communityaccording to the discretion and judgment of the executors.
Held (by GrenierJ. and obiterby Wood BentonJ.), thatthe
trust in favour ofthe Burgher communitywag notvoid on .the
ground of its being vague.
fJlHE facts are set out in the judgment,
Bawa, K.C., for the appellant.
Allan Drieberg (with him Vernon Grenier), for the respondents.
Gut. adv. vult.
i (1902) % K. B. 743.
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1812. March 4, 1912. Wood Benton J.—
i^Pwww* The plaintiff-appellant obtained judgment against the seconddefendant-respondent, Selina Ashbourne, who is now the wife ofthe third defendant-respondent, Bichard Oswald Estrop, in casesNos. 20,782 and 20,784 of the District Court of Kandy. In theexecution of the decrees entered up in pursuance of those judgments,he seized the alleged interest of Mrs. Estrop in premises No. 47,Trincomalee street, and Nos. 1, 1a, and 2, Cross street, Kandy,under the will of her uncle, Edward Theodosius Gerlitsz. The firstdefendant-respondent, who is the executor of Gerlitsz, claimed thepremises as forming part of the estate of Els testator. The claimwas upheld. The appellant consequently brings this action undersection 247 of the Civil Procedure Code, and claims in his plaint
a declaration that Mrs. Estrop is entitled to the premises or ashare thereof, and to the rents and profits thereof; and (2) adeclaration that the. said premises, or the interest of Mrs. Estroptherein, and her interest in the rents and profits, are liable to seizureand sale under the above-mentioned decrees. The learned DistrictJudge has dismissed the appellant’s action with costs. The presentappeal is brought against that decision. Mr. Gerlitsz’s will, whichwas made on June 28, 1877, directs (clause 1) the payment of allhis just and lawful*debts and funeral and testamentary expensesby the “ executors hereinafter named ” out of his personal estate.Clause 2 is important. It is in these terms: —
I giveand bequeath to mydearlybelovedsisterFrederica,nowthe
wife of Mr. J.H.Perera, to myunmarried sistersAnethaGerlitsz,
MargaretCecilia Gerlitsz, andto mynieceSelinaAshbourne,allthe
issues, rents, and ' profits arising from my real and personal propertysituate at Kandy, Nnwara Eliya, and Badulla, or wheresoever situateand allthe interest and dividendsarisingandaccruingfromthe
moneys now laid out at interest' on the mortgage of real propertysituate at Kandy and at Badulla, in equal shares and proportions, andI direct that the same be paid to them by my executors during theterm of their natural life, and after the death of any one or either orall of the said legatees, I direct that- the share of the rents and interestaforesaid of the legatee so dying should be distributed among thewidows, orphans,andreally deservingdestitute peopleof theBurgher
community according to thediscretion andjugment of myexecutors
. hereinafter named.
Clause 3 directs an expenditure of Bs. 1,500 by the executors outof the estate for the purpose of placing a tablet in the Church ofSt. Mark at Badulla, and for the erection of a monument with astone over the testator’s grave. Clause 4 prohibits the sale of thehouses and lands situated in Kandy, but enables the executors,if they think it desirable, to dispose of any house and lands situatedin Nuwara Eliya or in Badulla, and concludes as follows:—
In the eventofeach sale, Idirect that theproceedsthereof,
together with the other moneys of my estate, be held in trust by
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them and be invested in a good and sufficient security of landedproperty, and the interest and dividends arising therefrom be paidas hereinbefore provided for in the second clause of this my will.
Clause 5 prohibits the executors from mortgaging, hypothecating,or otherwise encumbering any of the real property, and enables theexecutors to maintain the property in good repair out of the incomeof the estate, provided that the expenditure is not such as willmaterially diminish the life interest of the testator's sisters andniece. Clause 6 is in these terms:—
I direct that my said sisters and niece shall not be allowed to mortgage,alienate, assign, or otherwise encumber their life interest in this my estate or todraw the same in anticipation.
Clause 7 is also of importance, and provides as follows:—
I do hereby nominate, constitute, and appoint the. Reverend George HenryGomes, James Hugh Sproule, and George Henry Oorloff, all of Badulla, to theexecutors and trustees of this my last will, and in the event of the death, inability,or unwillingness of any of my said executors to act in the execution of thetrusts of this my will, I direct that the person or persons nominated by suchexecutor or executors so dying, being unable, or unwilling to act as aforesaid,be substituted and appointed in his dr their place and stead.
Of the three original executors, Mr. Gomes and Mr. Sproule aredead. The third, Mr. Oorloff, on his resignation owing to old age,acting under the power created by clause 7, appointed the firstdefendant-respondent to be an executor and trustee in his stead.
At the trial of the action the proctors for the appellant suggestedone set of issues, and the proctor for the first defendant-respondentanother. There is nothing to show directly which set of issues thelearned District Judge accepted.
I will proceed now to deal with the points urged by Mr. Bawain support of the appeal. His first contention was that the firstdefendant-respondent, although he might be regarded as Mr.Gerlitsz’s executor, was not in the position of one of the originaltrustees as regards the carrying out of the trust created by the will.It is only, said Mr. Bawa in effect, to the executors “ hereinafternamed ”—that is to say, Mr. Gomes, Mr. Sproule, and Mr. Oorloff—that the. trust is committed. In my opinion this point is bad.The nominee of a surviving trustee would, I think, be included inthe words “ hereinafter named,” or, to use the language of clause 5,“ hereinafter mentioned. ” Such a nominee is specifically indicatedin clause 7. But, apart from that, it seems to me that the languageof clause 7 expressly puts the nominee of a retiring executor andtrustee in the same position as one of the original executors andtrustees for all the purposes of the will. ” In the event,” says thetestator, “.of the death, inability, or unwillingness of any of mysaid executors to act in the execution of the trusts of this my will,”the nominee of any such executor is to be substituted and appointedin his place and stead.
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Mr. Bawa’s next argument was that in any case the first defendant*appellant could not set up the right of Grebe, the alleged purchaserat a Fiscal's sale against Mrs. Estrop in case No. 18,545 of theDistrict Court of Kandy of her interest in the premises in question.Grebe himself might have claimed that interest under the Fiscal’ssale. But so far as the first defendant-respondent was concerned,it was a jus tertvi which he could not asert. To this argument itappears to me that there are two answers. In the first place, notonly was the point not taken in the District Court, hut the partieswent to trial on an issue suggested by the appellant’s proctorsthemselves as to whether such a seizure and sale had taken place.Moreover, as I have already mentioned, the appellant in his prayerin the present action claims a declaration of title in Mrs. Estropto the premises dealt with by Geriitsz’s will itself, and further, adeclaration that these premises should be declared liable to seizureand sale in execution of the appellant’s decrees. Under thesecircumstances, I think that the first defendant-respondent, as theexecutor and .trustee of Mr. Geriitsz’s will, was quite entitled toprefer a claim at the inquiry, and to meet the appellant’s presentaction under section 247, by contending that Mrs. Estrop had nointerest in the corpus of the property under the terms of the will,and had been divested of her interests in the rents and profits bythe proceedings in D. C. Kanady, No. 18,545.
Mrs. Estrop, it would appear, is now the sole surviving legateeunder the will, and Mr. Bawa contended that she had a seizable andsaleable interest in the corpus of the property itself on the two-foldground:(1) That,there was nothing in the will to vest the property
in the executors and trustees; and (2) that in any case the trust infavour of the classes indicated of the “ Burgher community ” wasso vague as to be void. With reference to the first branch ofthis argument, I think that the intention of the testator clearly wasto vest the corpus of the property in his trustees for all the purposesof the will, and that he has used language sufficiently apt to giveeffect to that intention. The estate was undoubtedly vested in thetrustees for purposes of administration. But there is more thanthat. The triist created by clause 2 could only be carried intoeffect if the estate was vested in the trustees for the purpose of thetrust itself. Clause 4 deserves notice in this connection. Whileprohibiting the sale of the houses and lands in Kandy, it conferson the executors a power, which might be exercised at any timeafter the death of the testator, to sell the houses and lands inNuwara Eliya and Badulla, and expressly provides that the proceedsof any such sale should be held in trust and invested, on good andsufficient security of landed property, and that the interest anddividends arising therefrom should be dealt with under clause 2 ofthe will. In my opinion the trustees were vested with the legalestate—to use the familiar term of English Taw—in the property
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dealt with in the will for the purpose of the trust. There was nogift of the corpus or any portion of it to the legatees. The interestconferred upon them by clause 2 was a life rent only. As the learnedDistrict Judge has pointed out, no provision was made for theheirs of any of the legatees. There is no analogy between thepresent case and the well-known cases under the Boman-Dutch law,in which a gift of the usufruct, coupled with a prohibition ofaliention, has been held to carry with it a gift of the dominium.In the present case it is the trustees alone who are prohibited fromalienating certain classes of the property, The Beneficiaries (seeclause 6) are prohibited merely from alienating or anticipatingtheir life interest. I may say in passing that I agree with theDistrict Judge in his construction of the following clause of thewill: —
After the death of any one or either or all of .the said legatees, Idirect that the share of the rents and interest aforsaid of the legateeso dying shall be distributed among the widows, orphans, and reallydeserving destitute people of' the Burgher community according to thediscretion of my executors hereinafter named.
I do not think that in the present case the objection that the trustis too vague to be capable of execution can be taken in appeal. Itis distinctly a point that, if it was to be raised at all, should havebeen made the subject of an issue. The question whether there isany such indefiniteness in the phrase ‘‘ the Burgher community ”as to prevent the trust created by clause 2 from being carried outis obviously one the answer to which might depend on evidence.Moreover, a determination of the question referred to is at presentunnecessary. Mrs. Estrop, one of the original legatees under thewill, is still alive, and the only point to be determined is whethershe has only present interest under the will which is executableunder the appellant’s writs. That question must be answered inthe negative. If it had been necessary to decide the point, Ishould have been disposed to hold that there is no such vaguenessin the meaning of these words now as to make that part of thetrust created by clause 2 bad. The wide discretion conferred byclause 2 on the executors is sufficient to obviate any difficulty inregard to the selection of persons within the classes of “ the Burghercommunity ” mentioned by the testator. On these grounds Iwould dismiss this appeal with costs.
I have had the advantage of reading the judgment of my brotherWood Benton, and I agree with him on all the.points dealt with inhis judgment. The case presented no difficulties to me at theargument. The will in question contains clear and plain directionsin regard to the manner in which the trust created by it was to be
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administered. There were three executors and trustees appointedby the will, and the first defendant, who was nominaid by one ofthem, Mr. Oorloff, has undoubtedly, under clause 7, the same powersas the original trustees, unless we gave the words of that clause astrange and distorted meaning. I was unable to follow the argumentfor the appellant that the trust in favour of the classes indicatedof 1 the u Burgher community ” was so vague as to be void. Thetestator had perfect confidence in the executors appointed by him,and he left the matter in their hands so far as the selection of thewidows and orphans belonging to that community was concerned.As rightly pointed out by the learned District Judge, the term*' Burgher community ” as used by the testator in 1877 was wellunderstood and recognized, but, speaking for myself, 1 cannot seeany reason why the description “ widows and orphans and reallydestitute people of the' Burgher community ” should not embracethe larger class created solely by tbe Legislature and now in actualexistence. The executors were given absolute discretion in theselection, and it is nobody’s business to interfere with it. Theobjection as to the vagueness of the trust has absolutely no founda-tion to rest upon. The reasons given by the learned District Judgefor the conclusions he arrived at impressed me very strongly atthe argument, and I agree to dismiss the appeal with costs.
VYRUPULLE v. PERERA et al