WIJEYERATNE v. WIJEYERATNE AND OTHERS

028-SLLR-SLLR-1981-1-WIJEYERATNE-v.-WIJEYERATNE-AND-OTHERS.pdf


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WIJEYERATNE
v.WIJEYERATNE AND OTHERS
SUPREME COURT
WEERARATNE J., SHARVANANDA J.,
AND WANASUNDERA J.,
S. C. NO. 32/80
A. (SC) 70/73 Intv.
C. GAMPAHA 16253/P
MARCH 26, 1981.-
Last Will — Fideicommissum — Power to disinherit — Is deed necessary for gift-over ?
Held (Sharvananda J. dissenting) The Last Will clearly created a valid fideicommissum,
as the property was not to vest in the fiduciary absolutely. The fideicommissary wasclearly indicated and the power to disinherit was otiose and redundant.
The fideicommissum being valid the gift-over to the named fideicommissaries (sons ofthe testator) takes effect automatically although the fiduciary (widow of the testator)had failed to comply with the testator's direction to "devise and bequeath" the inheri-tance to them as directed. The properties vest automatically on the fideicommissarieson the termination of the fiduciary interest.
Per Weeraratne J: The Last Will carried the direction that the fiduciary should deviseand bequeath the properties to the fideicommissaries "if in her (fiduciary) opinion they(the fideicommissaries) had merited it by the kind of treatment they had accorded toher" but as the fiduciary had not declared otherwise it would not be unreasonable topresume that she had no objection to the fideicommissaries succeeding to the propertiesas fideicommissaries.
Per Wanasundera J: The condition that the fiduciary should make the bequest"if in her opinion they had merited it by the kind of treatment they had accorded toher is in effect otiose and redundant" and does not confer "a positive power of disin-heritance."
Cases referred to:
Edirisuriya v. Wijedoru (1965) 68 NLR 325,328,330.
Bibi/e v. Mahaduraya (1926) 28 NLR 253.
Kiri Banda v. Punchiappuhamy (1951) 53 NLR 361,363.
Seneviratne v. Seneviratne (1950) 51 NLR 553, 559,560.
Van Niekerk v. Van Niekerk’s Estate (1935) C.P.0.359.
Jewish Colonial Trust Ltd. v. Estate Nathan (1940) AO 163.
APPEAL from judgment of the Court of Appeal.
C Thiagalingam Q.C. with H. L. de Silva, N. K. Choksy,
Mark Fernando and H. Jayamaha for 6th defendant-respondent-appellant.
Nimal Senanayake with K. Gunaratne, P. A. D. Samarasekera. Miss S. M. Senaratne andMrs. A. S. Dissanayake for 2nd plaintiff-appellant-respondent
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May 29,1981
WEERARATNE, J. .
By his last Will No. 2314(15) dated 17th June 1958, T. A. de S.Wijeyeratne. devised and bequeathed to his wife Rose CharlotteHelen de Silva Wijeyeratne two lands named Pelahela Estate andEtheraliyagahawatte subject to the following conditions and res-trictions to wit:—
"My wife shall not sell, mortgage, encumber or otherwisealienate the said lands or any of them hereby bequeathed toher, but shall take and enjoy the rents, profits and incomethereof during her lifetime and shall devise and bequeath thefirst-named called Pelahela Estate unto our son Lindon and thesecond-named land called Etheraliyagahawatte unto our sonDalton if in her opinion they had merited it by the kind treat-ment they had accorded to her."
The sole question that arises for decision in this appeal in whichall parties are brothers and sisters, turns on the construction of theclause in the said last Will set out above. Mr. C. Thiagalingam Q.C.appearing on behalf of the 6th Defendant-Respondent-Appellant(hereinafter referred to as the Appellant), submitted that theCourt of Appeal judgment is in error in holding that there was nofideicommissum created in favour of the Appellant. LearnedCounsel contended that on the contrary the words in the clausereferred to above, constituted an indefeasible fideicommissum.with power to the fiduciary to make over the gifts of the saidlands to the'Appellant, Lindon Marimus and also to his brotherDalton respectively, inter vivos. The finding of the Court ofAppeal is that the phrase, 'If in her opinion they had merited it,'clearly controls the whole paragraph and that the bequest is madesubject to her discretion and that consequently it is in her absolutediscretion whether or not to bequeath the land to the Appellant.
Mr. Nimal Senanayake, in submitting that there is no fidei-commissum created, supported the finding in the Court of Appealjudgment and stated that if the widow wanted to do what herhusband had indicated in the relevant clause, then even if theAppellant had not behaved in the way stipulated by the Testator,he would nevertheless get a share as one of the intestate heirs.In regard to the Appellant and his brother Dalton, Counsel submit-ted that if there was any doubt, preference must be given to thelarger class on the basis that there is no fideicommissum.
In construing this Will, a close examination of the relevant
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clause reveals that the gift to the Appellant and his brother issubject to restrictions.
In the judgment of the Court of Appeal it is stated:—
"The phrase, 'if in her opinion they had merited it,' clearlycontrols the whole paragraph. The bequest is made subject to herdiscretion. She is put under no obligation to bequeath the land tohim." The Court held that there was no fideicommissum createdas the widow was left with a discretion vvhether to give the pro-perty or not and that accordingly the property devolved on herabsolutely, and on her death on all her heirs equally. But thereis a clear prohibition against alienation imposed on his wife by theTestator, thus ensuring that his wife cannot regard it as her abso-lute property, but could only enjoy the rents and profits andincome during her lifetime. The Testator then goes on to stateemphatically, ". . . and shall devise and bequeath the first namedestate unto our son Lindon. . ." There is here, a clear indicationthat Lindon, and Lindon alone is to be the fideicommissary.
A fiduciary cannot defeat the Testator's intention (which in thisinstance is that this land must go to the fideicommissary, Lindon)except where the fideicommissum is a Fideicommissum Simplex(vide 68 N.L.R. 325 at pp. 328 and 330 in Edirisuriya v.Wijedoru^')• But in this case there is no such exceptional Fideico-mmfssum Simplex because the fiduciary has not been expresslygiven a power of alienation. Having regard to the language used inthis clause of the Will, it seems clear that the Testator had theintention of creating an ordinary fideicommissum in favour ofthe Appellant.
There is in law a presumption against a fideicommissum in acase of doubt as to the Testator's intention, but in this case thereis no reasonable doubt.
In view of all that I have discussed above, the question arisesas to what significance should be attached to the omission onthe part of the widow to declare expressly that Lindon and hisbrother had merited the said lands by the treatment accorded toher. When the fiduciary is empowered to disinherit any of thefideicommissaries named by the Testator, the power of disinheri-tance must be determined by rules which are akin to those gover-ning a power of appointment, which requires that the Will andintention of the Testator must be gathered from the differentterms employed. However in this instance one does not need to gofar to infer that an implied power of disinheritance is given to thefiduciary in the said clause, since the words used are quite clearand explicit.
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". . .if in her opinion*they had merited it by the kind oftreatment they had accorded to her."
Since the fiduciary has not declared otherwise it would not beunreasonable to presume that she had no objection to Lindon andhis brother succeeding to the properties as fideicommissaries.Consequently the fideicommissa created by the Testator conti-nues to be operative, in this case however, there has been anomission on the part of the widow to exercise the discretion givento her to make a declaration so required of her.
It will be noticed that the relevant clause also requires thewidow "to devise and bequeath” the said lands to Lindon andDalton. The fact that the lands were not devised and bequeathedwould not however invalidate the fideicommissum. in the case ofBibile v. Mahaduraya reported in 28 N.L.R. page 253^2) JusticeGarvin stated
"As to the contention that the fideicommissum did not becomeeffective by reason of the absence of a deed of gift in favour ofBandu Menike and Muthu Menike, I think the answer is that ifa valid fideicommissum has in point of fact been created, thenthe fideicommjssary became vested with the property immedia-tely the fideicommissum matured by the happening of thecontingency, the death of the donor.”
In the case of Kiri Banda v. Punchiappuhamy 53 IM.L.R. page3S1(3) Gratiaen J. stated at p. 361.
"The law was finally settled by Garvin J and Lyall GrantJ in Bibile v. Mahaduraya which held that a valid fideicommissum was created, and that no express deed from the doneewas necessary to render it effective, where a conveyance con-tained 'not a mere request but a direction and an imperativeorder' requiring the first institute to pass the land to the nextset of institutes.”
Gratiaen J stated that the principles of law to which Garvin Jand Lyall Grant J had referred are now clearly set out in a passageat page 143 of Professor Nadaraja's Treatise on the Roman-DutchLaw of Fideicommissa in the following terms:—
"In the pre Justinian Roman Law, the fideicommissary didnot acquire ownership in the property until 'restitution' of ithad been made by him to the fiduciary at the time prescribedby the testator. But after Justinian had enacted that there wasto be no difference between the different kinds of legacies and
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between legacies and fideicommissum and that fideicommissa-ries and legatees equally should have not merely a personalaction but also the real action which had formerly been open tolegatees per vindicationem, ownership (at any rate in the case ofsingular fideicommissum) passed from fiduciary to fideicommis-sary, even without any express restitution, as soon as the gift-over to the latter was expressed to take effect. In the modernlaw it would seem that in all cases the transfer of ownershiptakes place automatically at the time prescribed by the testatorfor the vesting of the fideicommissary's interest, and the fidei-commissary is entitled from that time to the use and enjoymentof the property and to enforce his claims to the propertyagainst the fiduciary, his representatives, or other possessor."
Having regard to what has been cited above, Gratiaen J statedthat the failure of either daughter to obey the direction that sheshould "make over" her share to the fideicommissaries did nothave the effect of defeating the donor's intention.
For the reasons given I am of opinion that the appeal of theAppellant must be allowed with costs in this Court.
SHARVANANDA, J.
I regret being unable to agree with the reasoning or with the con-clusions of Weeraratne J. or of Wanasundera J.
The basic issue in this case is whether the 6th defendant-appel-lant had become entitled to the sole proprietorship of the landcalled "Pelahela Estate,' the subject matter of this action, byvirtue of the last Will No. 2314 dated 14.6.58(P5), or whether hewas only entitled to a share as co-owner of the said land alongwith his brothers and sisters on the basis of his being an intestateheir of his mother.
By his last Will No. 2314, the late T. A. de S. Wijeyeratnedevised and bequeathed to his wife Rose Charlotte Wijeyeratnethis land and another land called 'Etheraliyagahawatte' subject tothe following conditions and restrictions:
"My wife shall not sell, mortgage, encumber or otherwisealienate the said lands or any of them hereby bequeathed to herbut shall take and enjoy the rents, profits and income thereofduring her life-time and shall devise and bequeath-tfie. first-named land called 'Pelahela Estate' unto their son Lindon, andthe second-named land called 'Etheraliyagahawatte' unto their
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son Dalton if in her opinion they had merited it by the kind of
treatment they had accorded to her."
Wijeyeratne died on 15.12.58 and in terms of the aforesaid lastWill, title to Pelahela Estate became vested in the widow, subjectto'the aforesaid conditions and restrictions.
The widow, Rose Charlotte Wijeyeratne, died intestate on16.12.70. The question in issue is whether, on the widow dyingintestate, the land devolved on all her children in equal shares, orwhether, in terms of the aforesaid last Will No. 2314, Lindon, the6th defendant-appellant, became solely entitled to it even thoughthe deceased widow had not devised and bequeathed the saidland to him in terms of the said last Will.
The position of Lindon, the 6th defendant-appellant, is that thesaid last Will created a fideicommissum in his-favour and that onthe death of his mother, the fiduciary, the property devolved in itsentirety on him. The District Judge who heard the case upheld theappellant's contention and dismissed the plaintiff's action forpartition of the land. On appeal by the plaintiff, the Court ofAppeal held that the last Will did not create a fideicommissium infavour of the 6th defendant-appellant and that the property,therefore, devolved in equal shares on the intestate heirs of thewidow, and could be partitioned. From the judgment of the Courtof Appeal, the 6th defendant-appellant has preferred this appeal.
The contention advanced on behalf of the appellant was thatthere was-a prohibition on alienation by the legatee and thatthere was a clear indication of the persons for whose benefit it wasimposed and that the’ last Will thus created a fideicommissum infavour of the appellant and his brother Dalton. It was submittedthat the last two lines, "if in her opinion they had merited it bythe kind of treatment they had accorded to her," conferred apower of disinheritance on the widow by implication and that theappellant and his brother Dalton remained the instituted fidei-commissary heirs of the testator because of the non-exercise of theimplied power of disinheritance by their mother.
A 'fideicommissum' is a disposition of property in favour of aperson called a-'fiduciary' with an obligation imposed upon himon his death, or in the happening of a certain event, or on thefulfilment of a condition, to hand the same over to or allow theproperty to devolve on a third person called a 'fideicommissary.'For the existence of a valid fideicommissum, it is essential that:—
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the testator should have shown that the subject mattershould not be the absolute property of the first taker of itbut that it should go over on the fulfilment of some condi-tion from the fiduciary to the fideicommissary;
there should be certainty about the property; and
there should be certainty about the persons who as fidei-commissaries are to benefit by it and about the time atwhich the rights vest in the fideicommissaries.
The obligation resting on the fiduciary to hand over and trans-mit the property in question to the fideicommissary should becontained in a positive direction or command in the will. Noparticular form of words is necessary to create a fideicommissum.But the intentioq to substitute another (fideicommissary) forthe taker# (fiduciary) should be express or is to be gathered bynecessary implication from the language of the Will for a fidei-commissum to be constituted. However, there should be clearnessof language and certainty both as regards the intention of themaker and the person to be benefited. The mere prohibitionagainst alienation does not constitute a fideicommissum, unlessthe persons are indicated in whose favour the prohibition is made.(Voet 36.1.27) For the constitution of a valid fideicommissum,it is absolutely essential that the person should be indicated towhom the burdened property must go. Where the fideicommi-ssary is not expressly designated, he must by implication be clearlyindicated. No fideicommissum is created unless someone is indica-ted by the Will who should take the property after the death ofthe person to whom the life interest had been bequeathed. In theabsence of such an indication, the fiduciary heir or legatee takesthe estate absolutely. Any curtailment of the rights of ownershipappearing in the Will, such as a prohibition against alienation, is ofno legal effect unless a third party is indicated in whose favoursuch curtailment is to operate. The fideicommissary is generallyto be ascertained at the time specified for the gift-over or restitu-.tion; so that if members of the class designated die before thatdate, they do not generally transmit to their heirs any right to thefideicommissum. (Voet 36.1.26) It is however open to the testatorto leave to the fiduciary the task of deciding who are to be thefideicommissaries by giving the fiduciary what in English Lawwould be called "power of appointment." As .pointed out byMaasdorp (6th Edition, Vol. I, at page 201):
"A testator may confer upon the fiduciary the power of
selecting the person upon whom such property shall devolve
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at the expiration of the life interest, in which case the dueexercise of such power has the same effect as if the testator h^dhimself made the selection in his Will."
But it is a necessary condition to the validity of such a disposi-tion that it must not be left to the fiduciary whether or not hewill pass on that property. The obligation to pass on should bepresent. The exercise of a power of appointment has the sameeffect as if the testator had himself made the selection in his Willand the person nominated under the appointment is thereforethe heir or the legatee of the testator and not of the person whoexercises that power. If the grantee is given the choice of certainpersons and fails to exercise that choice, all will be entitled toinheritance or bequest, namely, those living when the time fordistribution arises. (Voet 36.1.29) The grantee must exercise hispowers within the limits of those powers conferred upon him.If he exceeds or executes them improperly, the result is thesame as if he had not executed them at all. In Seneviratne v.Seneviratne (51 N.L.R. at 559, 560) (4), Dias SPJ. quotes withapproval the following passage from Nadarajah on Fideicommi-ssa, page 59:
"But for the exercise of the power of appointment to be valid,the fiduciary must act within the limits imposed upon him.For example, if the mode of exercise of the power is restrictedto appointment by Will, an appointment by deed will be invalidand vice versa; or where the fiduciary appoints from outside theclass designated by the testator, the appointment would beinvalid; as will also be the case where a condition is attached tothe exercise of the power and the power is exercised without
the condition being satisfiedIf there has been no exercise
of the power at all, or it has not been properly exercised, thosepersons whom the testator designated as beneficiaries in theevent of non-exercise of the power will succeed. If no suchsubstitution has been made by the testator, all the persons fromwhose number the selection was to be made by the fiduciarybecomes entitled to succeed where the power is special and thefiduciary's intestate heirs will be entitled to succeed wherethe power is general."
Professor Nadarajah in his book on Fidei-Commissa states atpages 80-81.
"Where there is a disposition to A for life and on his deathto such person as he may appoint, A is not absolute ownerbecause there is a clear indication that he should take only a
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life interest — he is not a fiduciary to whose discretion it is leftwhether or not to pass on the property and it is not a casewhere there is no gift-over, or where the gift-over has failed ….
In such a disposition, the fideicommissaries are ascertainable onA's death,"according as A has or has not exercised his power ofappointment. If A has exercised his power, the appointees arethe fideicommissaries under the original testator's disposition.Where he has not exercised his power of appointment, a gift-over on default of appointment to the intestate heirs is implied."
If there is failure of the person entitled to claim restitution, thefideicommissum fails. On the failure of the fideicommissary, thefiduciary's interest gets enlarged into full ownership. Where pro-perty is left to an heir or legatee who is restricted by the terms ofthe Will to take in the income merely of the inheritance or bequestfor life and there is no gift of the corpus to anybody else and noindication of anybody in whose favour the restriction on the heiror legatee was imposed, the restrictive provision will be treated asmerely nudum praeceptum without binding effect; and the heir orlegatee is entitled to claim the corpus of the property. "In theconstitution of a valid fideicommissum, it is absolutely essentialthat the person or persons should be indicated to whom the bur-dened property must go. There must be a gift-over. If no person orclass of persons is mentioned to whom the fiduciary is to hand theproperty, no fideicommissum is created even though the testatormay have purported to burden the inheritance or bequest with theentail of fideicommissum as the fideicommissum is nudum andinoperative." (Steyn on Wills — 2nd Edition, at page 286). Theburden of fideicommissum is extinguished where there is a failureof the person on whom the burdened property is to devolve. Uponsuch failure, the fiduciary becomes the absolute owner of the bur-dened property, unless alternate fideicommissaries are substitutedin the Will.
It is in the background of the above principles that one has totest the claim of Lindon, the 6th defendant-appellant, to be thesole fideicommissary entitled under the said last Will to succeedto the entirety of the property on the death pf his mother.
By his last Will, the testator had directed the legatee to deviseand bequeath Pelahela Estate to Lindon "if in her opinion he hadmerited it by the kind of treatment he had accorded to her."This condition, "if in her opinion he had merited it," controls thelegatee's obligation to bequeath the property to Lindon and iscondition precedent to Lindon's entitlement to be devisee. If inher opinion Lindon did not merit it, there was no obligation on
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the legatee to devise and bequeath the property to him. The testa-tor's object is quite manifest. The testator appears to have hadconfidence in the judgment of the legatee and had provided for agift-over to the 6th defendant-appellant only "if in her opinion hehad merited it;" impliedly if in her opinion he had not merited it,there was to be no obligation to make a gift-over to Lindon. In myview it is not legitimate for this Court to depart from the termsof the Will and to ignore this vital condition on which Lindon'sentitlement rested and to treat the gift-over to Lindon as absoluteand automatic when, ex-facie, it was conditional. This condition,however, had not the effect of giving absolute discretion to thelegatee to say whether she is willing to give as held by the Court ofAppeal — nor did it import a power of disinheritance. The powerconferred by the testator on the legatee was not power of disinhe-ritance but power of appointment. If in her opinion he meritedthe legacy by the kind of treatment he accorded to her, the'legateewas obliged to appoint Lindon as fideicommissary to succeed her.
It logically follows that, if in her opinion he did not merit it by .the kind of treatment he had accorded to her, she was not obligedto bequeath the property to him; in that event, the power ofappointment need not be exercised. In view of the fact that thelegatee, Mrs. Rose Charlotte Wijeyeratne, did not devise andbequeath to Lindon the property though she had survived thetestator for twelve years, it is to be presumed that in her opinionLindon did hot merit the legacy by the kind of treatment he hadaccorded to her. The condition precedent for Lindon's appoint-ment had not been satisfied and Lindon did not become entitledto be appointed fideicommissary. It was not a question of disin-heritance, but a case of Lindon failing to satisfy the condition ofentitlement to be appointed fideicommissary. Disinheritanceinvolves the idea of divesting a beneficiary of a benefit which isalready vested in him. Lindon was never vested with any right tothe property. That right would stem only from an appointment byhis mother, Mrs. Wijeyeratne.
The contention that "the clause that Mrs. Rose Charlotte Wiie-yeratne 'shall devise and bequeath Pelahela Estate unto Lindon ifin her opinion he had merited it by the kind of treatment he hadaccorded to her' can be considered otiose and redundant and thatthe 6th defendant-appellant must be considered under the law topossess Lrie right cm having the property passed to him automati-cally on the determination, of the mother's fiduciary interest" isagainst all canons of interpretation. A Will should, if possible, beconstrued so as to give effect to every word or clause therein andthe Court is not at liberty to disregard any word or clause if somemeaning can be given to it. It is not to be assumed that additional
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words or conditions are used without a purpose. One cardinal ruleof construction is that effect must be given to the intention of thetestator. The Court cannot re-write the testator's Will. A clausewhich spells the testator's intention cannot be rejected as otioseor redundant. In its context, that clause discloses the testator'spurpose, viz. to see that Lindon treated his mother well to obligeher to bequeath the property to him. If the mother was of opinionthat Lindon was not treating her well, he would not merit beingappointed fideicommissary. There is sense in the provision; itmeans what it says. But in the submission of Lindon's Counsel,it serves no purpose and has no function to perfom in identifyingthe destination of the property. This facile explanation carries nopersuasion.
Mr. Thiagalingam for the appellant relied on the case of Kiri-banda v. Punchiappuhamy (53 N.L.R. 361)^). | agree with theprinciple of the judgment in that case. In that case, the deed ofgift by which one Ukkurala donated certain lands to his daughtersT. M. and D. M. provided as follows:
''I herebygrant and make as a gift untomy
daughters T.M. and D.M. .. . the lands to be possessed by themduring their life-time
Further, the said T.M. and D.M. shall only possess thesaid lands and premises allotted to them during their life-time and shall not transfer or mortgage the same outside andthe said T. M. and D. M. shall at their death make over theirshares and lands allotted to them to no other person than to Por to P's heirs and shall not alienate the same to any otherperson whomsoever.''
The Court rightly held that "the gift created a valid fideicommi-ssum in favour of P, or in the event of P's death of his heirs andthat no express deed from the fiduciary was necessary to render iteffective." In that case, the fideicommissaries,' or the personsbenefiting under the fideicommissum, were specifically named ornominated. There was no condition precedent, such as we havehere in this case, of a potential fideicommissary becoming entit-led to the property only if the fiduciary, being of the opinionthat he merited it by the kind of treatment he accorded to her,devised or bequeathed the property to him. The fundamentaldifference between that case and the present case is the conditionstipulated by the testator that the potential beneficiary shouldbecome entitled to the property only if the legatee should deter:mine that he deserved it. The omission of the mother in the exer-
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cise of the power bestowed on her by the testator to nominateLindon as fideicommissary has the significance and relevancewhich it did not have in the deed of gift referred to in the casereported in 53 IM.L.R. 361(3) viz. that Lindon acquired the statusand rights of a fideicommissary only on appointment by the partyso charged by the testator. In that case the fideicommissary wasalready appointed by the testator and could have been ascertainedat the time of gift-over. In the instant case, Lindon had never beenappointed fideicommissary and hence could not claim to succeedas such.
In my view the appellate's claim that he was the sole fideicom-missary under his father's last Will and was thus entitled to the soleownership of the subject matter of this action cannot be sustained.His appeal therefore fails and I dismiss it with costs.
WANASUNDERA, J.
I am in agreement with the judgment of my brother Weeraratne, J.and the order he has proposed. Since my brother Sharvananda, J.has taken a different view, I would like to set down my own rea-sons for allowing this appeal.
The Last Will of Mr. T. A. de S. Wijeyeratne, P5 of 1958, devi-sing the bequeathing this land and another land called Etheraliya-gahawatte to his wife Rose Charlotte Helen de Silva Wijeyeratne,contained the following condition:—
“My wife shall not sell, mortgage, encumber or otherwisealienate the said lands or any of them hereby bequeathed to herbut shall take and enjoy the rents, profits and income thereof •during her lifetime and shall devise and bequeath the first-named land called Pelahela Estate unto our son Lindon and thesecond-named land called Etheraliyagahawatte unto our son .Dalton, if in her opinion they had merited it by the kind oftreatment they had accorded to her."
It was plaintiff's case that the Last Will left the mother with adiscretion whether or not to devise and bequeath this oropertv toher son Lindon the 6th defendant-appellant and accordingly it hasnot created a fideicommissum in favour of the 6th defendant-appellant. Mrs. Wijeyeratne died on 6th December 1970 intestateand without making any bequest of this property to the 6thdefendant-appellant. Upon her death, the plaintiffs claim that allher children succeeded to the property in equal shares — eachbeing entitled to a 1/9th share. On this basis the two plaintiffs
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came into court claiming a 1 /9th share each and conceded to theother brothers and sisters similar shares. The 1st to 6th defendantstook up a common and united stand supporting the 6th defen-dant-appellant and averred that the Last Will created a fideicommi-ssum in favour of the 6th defendant-appellant and that, upon theirmother's death, the entirety of the property passed solely to the6th defendant-appellant and not to the other brothers and sisters.The 7th defendant did not participate in the proceedings.
Originally, the testator by Deed No. 202 dated 15th November1951 had gifted this property to the 6th defendant-appellant whowas at that time a minor, reserving a life interest to himself and hiswife Rose Charlotte Helen de Silva Wijeyeratne. This gift was arevocable one, the donor reserving "the full right and liberty torevoke, cancel and annul this deed of gift or donation at any timewithout notice to the said donee and without assigning anyreasons." The gift was revoked by the donor, as he lawfully may,by instrument No. 2282 dated 7th March 1957. Thereafter, on 1stJune 1958, Mr. T. A. de S. Wijeyeratne executed the Last Will P5.Mr. Wijeyeratne died on 15th December 1958. The material beforeus does not show that any untoward act on the part of the 6thdefendant-appellant had led to these developments. On the otherhand, Mr. Thiagalingam relied on these circumstances and statedthat it showed a clear intention and a consistent desire on the partof the testator to single out the 6th defendant-appellant for favou-red treatment.
In the District Court, the contention of the 1st to 6th defen-dants was upheld and the learned District Judge dismissed theplaintiff's action. The Court of Appeal, however, has reversed thatdecision holding that the Last Will has not created a fideicommis-sum in favour of the 6th defendant-appellant. In coming to thisconclusion, the Court of Appeal said that "the phrase 'if in heropinion they had merited it' clearly controls the whole paragraph.The bequest is made subject to her discretion. She is put under noobligation to bequeath the land to the 6th respondent. It is in herabsolute discretion, whether or not to bequeath the land to him."The Court of Appeal also added that in view of this discretionvested in her by the testator, "it must be presumed that he inten-ded to vest the dominium in her."
The Court of Appeal relied on a statement by Voet containedin Book 36 Tit. 1 Section 29 (Commentary on the Pandects trans-lated by Gane), and a comment on this passage made by Steyn onThe Law of Wills in South Africa (1st Edn.) page 237. Voet says:
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". . . it cannot indeed be said to be a fideicommissum, whenit is left in the discretion of him whom the testator thinks toput under obligation to say whether he is willing to give, that isto say hand it over. But nevertheless it is a proper fideicommi-ssum when it is not put into the discretion of him of whom therequest was made to say whether he is willing to hand over atall, but, after the need to hand over has been laid upon him, adiscretion is vouchsafed merely to allot the property and tochoose the person to whom it shall be handed over."
As I understand the law, I do not think that it is necessary forthe testator himself to indicate the fideicommissaries. It is opento a testator to leave to the fiduciary the task of deciding on whoshould be the fideicommissaries. This is tantamount to the givingof a power of appointment. Thus in a disposition "to A for lifeand on his death to such persons as he may appoint." A is not theabsolute owner because he "is not a fiduciary to whose discre-tion it is left whether or not he will pass on the property." VanNiekerk v. Van Niekerk's Estate, 1935 C.P.D. 359(5). Vide alsoNadaraja — Roman-Dutch Law of Fideicommissa, page 80.
A power of appointment conferred on a fiduciary may begeneral or special. It is special where the power can be exercised infavour of certain persons or a class. A general power is one inwhich the fiduciary is given an unlimited choice. Steyn appearsinclined to the view that where the power is general, there couldbe no fideicommissum and the fiduciary's interest is enlarged andhe becomes the absolute owner of the property. This view has notbeen accepted by the courts and finds no support in the old texts(vide Nadaraja, p. 78).
The Last Will in the present case contains in explicit terms aclear prohibition against alienation by the widow. This conditionis reinforced by the words that she "shall take and enjoy the rents,profits and income thereof (hiring her life-time." We also find herean indication of the person in whose interest this prohibition wasimposed. The 6th defendant-appellant is expressly indicated byname as a fideicommissary and he would be entitled to his rightsupon the fulfilment of the condition set out in the Will. A. genera!power of appointment is often confused with words which areprecatory in nature where "the testator's wishes are expressedmerely in the form of a desire or a direction, without giving a rightto someone to insist on such desire or direction being carried out,then the court will regard such desire or direction as nudum pra-eceptum and not enforce it ."Jewish Colonial Trust, Ltd. v. EstateNathan, 1940 A.D. 163(6). The latter would be a clear case where
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a discretion is given to a person "whether he is willing to give orrestore" mentioned by Voet.
Incidentally, though the discretion given to the widow appearsat first sight to be unlimited, it is in fact not so. It has certaincharacteristics of a special power of appointment. In the presentcase the widow is enjoined to transfer the property to the 6thdefendant-appellant on the fulfilment of the condition that the6th defendant-appellant had merited it by the kind of treatmenthe had accorded her.
This discretion is, no doubt, cast in subjective terms and made amatter of personal judgment of the widow. Nevertheless this doesnot constitute it an absolute discretion. Here we have a discretionwhich has to operate in the context of a stipulated condition. Asregards the decision, however subjective it may be, it is legitimateto expect, having regard to the ordinary course of affairs, thatthe widow would exercise her discretion not perversely but upona proper self direction. Since the discretion reposed in her has tobe exercised in the context of the stipulated condition, it is in thatsense a controlled discretion and not an absolute one. That a courtmay be unwilling to interfere with a decision made by her is notto the point. There is undoubtedly a freedom of choice — a certainlatitude given to the widow — but the freedom of choice here isonly in respect of the subjective assessment of the conditionprescribed by the testator and operates only within that context.In any event it is clear that it was the testator's intention toprovide for a gift over to the 6th defendant-appellant upon thehappening of a condition.
This becomes evident when we understand the full import ofthe condition laid down in the Last Will. It contains two inter-locking obligations which conjointly go to serve the wishes andintentions of the testator. The widow is on the one hand given alife interest in the property and enjoined to transfer it to Lindon,provided he had looked after her in the manner expected of a son,and the son for his part is given the right of getting this propertyprovided he were to look after his mother as is expected of a duti-ful son. It has been the testator's intention to make provision forthe welfare of both the widow and his son, the 6th defendant-appellant. These mutually supporting clauses appear to constitu-te the core of this testamentary disposition. I
I therefore incline to the view that the wording in the LastWill is sufficient to create a fideicommissum. If so, there are anumber of legal principles that could be availed of by the 6th
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defendant-appellant to enable him to succeed in this action.The following examples given by Voet at page 377 are of somerelevance in this context
"Nay again the discretion of choosing was at times restrict-ed by the founder to the deserts of the persons to be chosen,if for instance he said 'I ask you, my daughter, to some dayallot the goods to your children, as each one shall have deservedof you'. In such a case the jurist lays down in the passage citedbelow to what extent the discretion of choice was free or wasnot free to the daughter. He says, that is to say, that the fidei-commissum was left to all the children, though they had notequally earned it by merit. But if the mother failed to make achoice it would be enough for them that they had not doneanything to displease her. Those however whom the motherhad chosen would be in the stronger position if they alonehad earned it by merit. And if she should Have chosen noone, only those who had given cause for displeasure would notbe let in. This can also be gathered from the passage next citedbelow."
Mr. Thiagalingam relied on the judgment in Kiribanda v. Punchi-appuhamy (53 N.L.R. 361)^) which illustrates some of theseprinciples. This judgment and the decisions discussed in thisjudgment show that where the other indications in an instrumentor deed point to the intention to create a fideicommissum, anyspecific direction that the first institute shall by another act oftransfer pass the property to the next set of institutes cannot havethe effect of defeating the donor's intention, in the event thatsuch a transfer is not effected. The transfer of ownership to thesecond set of institutes takes place automatically at the timeprescribed for vesting of the fideicommissary'mterest.
In the present case, since there exists a clear indication of thetestator's intention to create a fideicommissum, the 6thdefendant-appellant has a right to succeed to the property as afideicommissary. This can only be defeated by a positive power ofdisinheritance. This Will qives the widow no such power. Thewording in the Last Will to bequeath the property to the 6thdefendant-appellant is not a power to disinherit. In so far as itseffect is concerned, it can be considered as otiose and redundantin view of the fact that the 6th defendant-appellant must heconsidered under the law to possess the right of having the pro-perty passed to him automatically on the determination of themother's fiduciary interest.
For the above reasons, I would allow the appeal and restore thejudgment of the District Court. The 6th defendant-appellantwould be entitled to costs in this Court.
Appeal allowed.