012-NLR-NLR-V-14-WEERASINGHE-et-al-v.-GUNATHILLEKE-et-al.pdf
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r>eC.Present: Hutchinson C.J. and Grenier J.
WEERASINGHE el at. v. GUNATILLEKE et cl.206* and 207—C. R. Matara, 5,625.
Usufruct—Fidei commiseum—Joint unit—Death of all children after
mother, but before father.
The joint- will of A and his wife B, who were married in com-munity of property, contained the following clauses :—
“ (2) It is directed that all the movable and immovable propertybelonging to us, be possessed by us, the above-named, during thelifetime of both of us according to our wish, and in the event ofone of us predeceasing the other, the above-named property bepossessed according to the wish, and dealt with according to thepleasure, of the survivor.
“ (3) It is directed that after the death of both of us all themovable and immovable property belonging to us shall devolve onthe children, grand-children, and such other hoirs descendingfrom us.**
Held, that under tho will the surviving spouse u< entitled tomerely a usufruct.
rpHE facts are set out in the judgments.
Van Langenberg, for the first defendant, appellant.—The firstdefendant purchased only a half-share of the land, the sharebelonging to the surviving testator. On the death of the testatrixthe surviving testator did not lose his right to deal with his propertyas he pleased, in spite of the joint will. A joint will contains twowills ; on the death of one spouse his or her will takes effect. IT bya joint will the entire property is disposed of, one spouse does notlose his or her right to deal with his or her share of the property
1 Portions of the judgment dealing with appeal No. 206 liave been omittedfrom this peport.
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merely by the death of the other spouse. The heirs or legatees ofthe deceased spouse may have a personal claim against the survivingtestator if he should alienate his or her share. The heirs do nothave a real action to vindicate title to property alienated. Thealienation by the surviving spouse of his or her share, though it becontrary to the will, is not null and void. The sale to the firstdefendant is therefore valid.
Even if the survivor does not have an unfettered right todispose of his property, the plaintiffs cannot succeed in this action.The learned Commissioner has held that the will created a fide>commission ; the surviving spouse would then be a. fiduciarius; eventhen the fidci commissum would have failed, as the children of thetestator had both predeceased the survivor. The words “ grand-children and other such heirs descending from us ” in clause (3) ofthe will should be construed as words of limitation, like the words“ heirs of the body.”
Under the joint will the heirs take only a gift of the residue.
Counsel cited Juta's leading Cases, Wills, pp. 112, 119, ancl 120;Ferdinandus v. FernandoMcndis v. Mohideen:'1 KurunathapiUaiv. Sinnapillui;:l Santaradiwakara v. De Saram '.
Sampayo, K.C., for the plaintiffs, respondents.—It would notmatter whether under the joint will the survivor was a fiduciariusor usufructuarius. If the property vested in the children on thedeath of the testatrix, the survivor had only a usufruct, and hecould not have alienated the property to first defendant, ' If thes ay vivo r was a fiduciarius under the wjll. the ntopfcrfy would devolveon the grandchildren «n uva-dcaiti of the survivor. The fact thatthe children had predeceased the surviving testator would not causethe fidei commissum to fail, as the grandchildren were speciallymentioned in the joint will.
Elliott, for second defendant, respondent.
Van Langenbcrg, in reply.
Cur. adv. vidt.
December 20, 1910. Hutchinson C.J.—
This appeal was referred by Grepier J. to a Court of two Judges,as the decision in it may afreet other properties besides that whichis the subject of this action. It raises a question on the meaning ofa clause in a joint will of the late David Ekanayaka, Mudaliyar, andhis wife, who were married in community of property before 1876,and made their joint mil on July 2, 1883.
' (J903) 6 X. L. R. 323.* {1397) 3 X. L. R. 194.
■ {1909).V. L. It. 317.' {1910) 9 Cur. L. R. 97,104.
Per. 20, 1910
Wuemringhr
GunatUMer
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ike. SO, 1910 The will was in Sinhalese. The 2nd and 3rd clauses of it, accord-Hutchwbon ing to the translations filed by the plaintiffs in this record, are asC-J- follows :—
“ (2) It is directed that all the movable and immovableproperty belonging to us, be possessed by us, the above-named. during the lifetime of both of us according toour wish, and in the event of one of us predeceasingthe other, the above-named property be possessedaccording to the wish, and dealt with according to thepleasure of the survivor.
“ (3) It is directed that after the death of both of us all themovable and immovable property belonging to us shalldevolve on the children, grandchildren, and such otherheirs descending from us."
The testatrix died on August 10, 1883. There were two childrenof the marriage : Anne Charlotte and Alice Mary. Anne Charlottedied in 1891 leaving three children only, who are the first threeplaintiffs. Alice Mary died in 1892 leaving one child only, who isthe second defendant.
The will was produced in a case in the District Court of Tangallain 1887, but probate does not seem to have been issued untilJuly, 1908, when letters of administration with the will annexedwere granted in No. 1,601, Matara (Testamentary), to the fourthplaintiff.
The testator died in 1907. The first defendant alleges that bydeed dated June 18, 1894, the testator conveyed to him one-half ofthe land, which is the subject of this action, and which admittedlywas part of the joint estate, and he now claims that half. Thethree children of Anne Charlotte brought this action alleging thatthe surviving testator did not require an absolute title to the jointproperty, but only a right to possess it during his life, and that onhis death the plaintiffs and the first defendant became entitled toall the property in the proportion of three-fourths to the plaintiffsand one-fourth to the second defendant, and they claim a declarationthat they are entitled to three-fourths of the land and to eject thefirst defendant.
The first defendant in his answer claimed under his purchase fromthe testator and denied the title of the plaintiffs and the seconddefendant, and denied the validity of the will and of the clausesreferred to in order to make a valid prohibition against alienation.The second defendant denied the plaintiff’s title to three-fourths,and asserted that he is entitled to one-half and the three plaintiffsto the other half; that question is the subject of another appeal.
The fourth plaintiff was added when the issues were settled; heis the administrator of the Mudaliyar’s estate, and has taken noactive part n this action.
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Independent translations of clauses (2) and (3) of the will havebeen made by the interpreters of this Court. They do not differmaterially from the translation given above.
J think that the two clauses are quite reconcilable. The survivorof the testators has the right to possess all the joint property anddeal with it as he or she pleases during his or her life, and after thedeath of both of them the whole of the joint property is to goabsolutely to their children and descendants.
The issue settled, so far as the contest on the present appeal isconcerned, was : “ Does the will make a valid fidei commissum infavour of the plaintiffs, or did the survivor have a mere usufruct ? ”The Commissioner held that the will created a fidei commissum, andthat the plaintiffs and the second defendant were entitled to theland. I should construe the will as giving the survivor a usufruct,in the same way as the will which had to be construed in Mendis v.Fernando,' but the result is the same so far as the appellant, thefirst defendant is concerned.
The appellants’ counsel contended that, if there was a direct giftto the children on the death of both the testators, the gift to themfailed on their death in their father’s lifetime, and that the words*’ grandchildren and other such heirs descending from us ” shouldbe construed as words of “ limitation,'” like the words'** heirs of thebody ” in an English grant to a man and the heirs of his body. Butthat construction is, I think, not possible. I cannot believe thatSinhalese testators using those words meant them to be construedas creating an estate tail according to the artificial rules of Englishconveyancing.
He also contended that, if there was a fidei commissum in favourof the children and descendants, the surviving testator, the fideicommissarius, who has adiated the inheritance, can make a goodtitle to his one-half of the estate to a bona fide purchaser who doesnot know of the fidei commission. Assuming that to be goodRoman-Dutch Law, and that there was here a fidei commissum thereis nothing to show that the first defendant was such a purchaser,and in the absence of such evidence this contention cannot besupported.
The appeal should therefore be dismissed with costs.
Dec. it, 191$
UuwittasoK
G.J.
Wceraninghe
r.GuiuilHIeke
Grenier J.—
The land in question in this case was admittedly the property ofDavid Ekanayaka and his wife Felicia Dissanayaka Wijesinghe.They were married in community of property, and on July 2, 1883they executed a joint will which was duly proved in D. C. Matara,No. 1.601. The testatrix died on August 10, 1883, and the testatoron May 2, 1907. They had two children ; Anne Charlotte, the
1 (1906) 9 X. L. R. 77.
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Ike. 2o, mo mother of the plaintiffs, who died on September 8. 1891, and AliceOuBRum J. Mary, the mother of second defendant, who died on February 21,
Weeraainghep. Qunaiillekc
1892. At the time of the execution of the will both Anne Charlotteand Alice Mary were alive.
The case for the plaintiffs, is that as there was a fidei commissumimposed by the joint will the survivor, David Ekanayaka, had onlya right to possess the common property during his lifetime, and thathe had no right to alienate the same; and, further, that the survivoradiated the will, and during his lifetime possessed the entirety of thecommon estate in terms thereof. The plaintiffs accordingly claimto be entitled to possess three-fourths of the land, conceding to thesecond defendant the remaining one-fourth.
The case for the first defendant was that no fidei commissum wascreated by the will, and that by right of purchase from DavidEkanayaka on deed No. 29,926 dated June 18, 1894, which wascalled for by me after the first argument, the first defendant is theabsolute owner of one-half of the land in question, the other halfbeing in possession of the heirs of the testator and testatrix. Thefirst defendant specifically denied that any fidei commissum existedwith reference to this land. At the argument before me, sittingsingly, the contest was practically narrowed down to the deter-mination of.the question whether or not the will created a validfidei commissum. The learned Commissioner was of opinion thalthere was a valid fidei commissum. As I had much doubt in regardto the correctness of the translation upon which the Commissionerbased his opinion, the Chief Sinhalese Interpreter of this Court, atmy request, made a translation of the material parts of this will,but as counsel for the respondent was not disposed to accept it ascorrect, another translation was made by C. W. d’Alwis, Inter-preter Mudaliyar of this Court, who seems to have taken the sameview that his brother interpreter had taken as to the absolutecharacter of the disposition in ihe will.
At the second argument before His Lordship the Chief Justice andmyself all the three translations were referred to, and the stronginclination of my opinion is that the words employed in the will arenot sufficiently clear and distinct to support the contention for theplaintiffs that there was a fidei commissum imposed by the will.There are no words in it showing an intention on the part of thetestator and testatrix to create a trust in favour of their childrenand grandchildren and their descendants ; and as I understand thewill in its entirety, the survivor was simply entitled to the usufruct,and not to the right of dominion in the immovable property dealtwith by the will. The word “ possess ” is very loosely used inwills in this country, but it is generally associated, not so muchwith the right of absolute ownership, as with the right of personalexclusive enjoyment during the lifetime of the person to whom theproperty is gifted or devised. I must confess that I have no
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knowledge of the technical and grammatical meaning of certainwords used in the will, which is in Sinhalese, but putting a reasonableconstruction upon the two principal clauses in the will, namely, the2nd and the 3rd, the intention was, I think, that the survivor wasto “ possess ” or enjoy the property during his or her lifetime,without the right to alienate it, and that after his or her death itshould descend to the children, or, if there were no children living,to the grandchildren. The 3rd clause is worded as follows : “ It isdirected that after the death of both of us all the movable andimmovable property belonging to us should devolve on our children,grandchildren, and such other heirs descending from us.” Admit-tedly the children of the testator and testatrix died before thetestator but after the death of the testatrix, and looking to thewording of clause (3), and the intention to be gathered from it, it isimpossible to suppose that the survivor was given the right ofdominium and not merely usufruct. Respondents' counsel veryproperly conceded that it was not necessary for his case to contendthat there was a fidei commission, and that it was sufficient for hispurpose to show that all that the survivor was to get under the jointwill was the usufruct. Although the issue as originally framedin the Court below was whether a valid fidei commission was createdin favour of plaintiffs, it was subsequently amended by the additionof the words “ or did the survivor have a mere usufruct,” so thatit is open to us on this appeal to find that, although there was nofidei commission created by the will, the survivor was only entitledto the usufruct, and that on his death the property passed to thegrandchildren of the testator and testatrix, the children being dead.
The District Judge was right in so finding. I would dismssthe appeal.
D«t.so,mo
Urbviku J.
W etrasinjluiv. QunatiUekt
Appeal dismissed.