090-NLR-NLR-V-16-WIRASINGHE-et-al-v.-RAJAPAKSE-et-al.pdf
( 366 )
1913.
Present: Lascelles C.J. and Wood Eenton J.WIRASINGHE et ah v. RAJAPAKSE et ah45—D. C. Tangalla, 1,250.
Joint will bequeathing all property to children—Property acquired by onespouse after death of the other—May servivor alienate such propertyto outsiders ?
A husband and wife made a joint will bequeathing their propertyto their children and reserving life interest for the survivor. Afterthe death of the wife the husband acquired the land in questionand sold it to the defendants. The heirs of the testators broughtthis action for the land aganist the defendants, and contended thatthe husband had only a life interest over the land.
Held, on the construction of the will, that it was not the intentionof the joint testators to dispose of any property which should beacquired by one of them after the death of the other.
Lascelles. C.J.—But the decision of the case really dependsupon the extent to which the Roman-Dutch law attaches thecharacter of irrevocability to joint wills in cases like the present one,where the surviving spouse has adiated and accepted benefits
under the will It is only with reference to the common
estate, and not with reference to property acquired after the deathof one of the spouses, that the surviving spouse is held to be pre-cluded by the terms of the will from disposing of the property.
IMS.
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rp HE facts are set out in the judgments.
De Sampayo, K.G., for the defendants, appellants.
A. St. V. Jayewardenc, for the plaintiffs, respondents.
W{rating hev. Rajapakse
Cur. adv. vult.
April 18, 1913. Lascelles C.J.—
David Ekanayaka and his wife Felicia',- being married in com-munity, made a joint will, which was judicially interpreted inWeerasinghe v. GunatUleke.1 It was there held that the survivorof the two testators had a mere usufructuary interest in the jointproperty, so that he or she had a right to possess the joint propertyduring his or her life, and that after the death of both testators thewhole of the property was to go absolutely to the testators’ childrenand their descendants.
The present action relates to property which was not part of thejoint estate, but was purchased by David Ekanayaka in 1888, aftertbe death of his wife, which took place in 1883. In 1889 DavidEkanayaka sold the property to the defendants. The plaintiffs aretbe grandchildren of the testatora, and they claim on the footingthat David Ekanayaka had, under the joint will, no more than ausufructuary interest in the. property, and that the sale by him tothe defendants did not pass title. The question then is whetherDavid Ekanayaka was precluded, by the terms of the joint will, fromalienating the property which was acquired after the community hadbeen dissolved by the death of Felicia. The learned District Judgehas decided in favour of the plaintiffs, and from his decision thepresent appeal has been filed.
The property disposed of by the will is described in the first clauseof the will as “ our movable and immovable property which we nowpossess, and which we may hereafter get and tarn for the sake of ourlivelihood. ” It appears to be mainly an account of this reference toafter acquired property that the learned District Judge has given hisdecision in favour of the plaintiffs’ contention. But when it isremembered that the community of goods by marriage includeseverything acquired by the spouses during marriage, as well aseverything possessed by them at the date of' the marriage, it wouldseem that the language of the will is appropriote to the purpose ofdisposing of only the common estate of the spouses. And I doubtwhether it was the intension of the joint testators to dispose of anyproperty which should be acquired by one of them after the deathof the other.
But the decision of the case really depends upon the extent towhich the Boman-Dutch law attaches the character of irrevocabilityto joint wills in cases like the present one, where the surviving
1 (1910) 14 N. L. R. 38.
( 858 )
1918,
XiASOELLES
C.J.
Wirasinghev. Rajapakse
spouse has adiatedand accepted benefits under the will. From thetext books on Eoman-Dutch law it appears clear that it is only withreference to the common estate that the surviving spouse is held tobe precluded by the terms of the will from disposing of the property.
(Van Leeuwen'e Commentaries, vol. I., p. 223; Burge, 1st edition-,vol. IV., p. 405; Van der Keeeeel, a. 283; see also South AfricanAssociation v. Mostert 1 and Haupt v. Van der Heever'e Executor.2)
No passage in the text books was cited in. support of the proposi-tion that the surviving testator is precluded from disposing ofproperty which did not form part of the common property, but whichwas acquired after the community had been dissolved by the deathof one of the spouses.
For the above reasons, I am of opinion that the judgment appealedagainst should be set aside, and the plaintiffs* action dismissed withcosts her© and in the Court below.
Wood Benton J.—
This case raises a question as to the interpretation of the jointwill of one David Ekanayaka and his wife Felicia Dissanayake. Theplaintiffs-respondents are their grandchildren. The defendants-appellants claim under a deed of transfer from David Ekanayakadated February 16, 1889. The joint will was executed on July 2,1883. The spouses were married in community of property.Felicia Dissanayake died, in August, 1883, and her husband acquiredthe property claimed by the respondents in the present case afterher death. The will in question was construed by the SupremeCourt in Weerasinghe v. Gunatilleke 3 as having conferred on thesurviving spouse only a usufruct of the property with which it dealt.That decision is binding upon us, and if there were no more tobe said, the appellants clearly could not have acquired any titleby their conveyance from David. Ekanayaka. Their contention,however, is that the property in suit, having been acquired by DavidEkanayaka after the death of his wife, did not fall into the jointestate disposed of by the will. The learned District Judge has over-ruled this contention, and has given judgment in favour of therespondents. The defendants appeal.
The general rule of law applicable to the construction of joint willsby which reciprocal benefits are secured to the spouses has beenclearly stated by Van der Keessel in these terms: —
“ A surviving spouse, who has made a will jointly with a pre-deceased spouse as regards their common property, and has beenappointed heir to such predeceased spouse, cannot make a differentdisposition in respect of that portion of the common property whichought to revert to the substitutes of the predeceased; but as regards
2Juta on Wills (Parti II.) 112.
a (1910) 14 N. L. R. 38.
*41 L;J. P. C. 41.
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that portion which would devolve on his own heirs he may legallymake a disposition, unless both the spouses have by common con-sent made a disposition of the common estate or of the share of thesurvivor.” (See Burge, 1st edition, vol. IV., p. 405; Juta L. C. 2,pp. Ill, 167-168; Denyssen v. Mostert; 1 and Dios v. De Livera.*)The respondents contended, and the learned District Judge hasheld, that the general rule as to the power of a surviving spouseover his own property has been excluded in the present case by thelanguage of the will itself, which professes to deal with “ all ourmovable and immovable property which we now possess, and whichwe may hereafter get and earn for the sake of our livelihood. ”
These words are no doubt wide enough to cover property acquiredby one spouse after the death of the other, and there is, of course,no reason in law why effect should not be given to such a provisionin a will if we can really find it there. But, on the whole, I thinkthat the intention of the spouses was to deal merely with propertybelonging to them at the time of the marriage or acquired by eitherof them while the marriage subsisted. The learned District Judgeattaches importance to the third clause, which is in these termB:
“ It is directed that after the death of both of us all the movableand immovable property belonging to us shall devolve on 'thechildren, grandchildren, and such other heirs descending from us.”But the meaning of the words ” belonging to us ” is, I think, fixedboth by the word “ we ” in the general clause above quoted and bythe provision in clause 2 that ” all the movable and immovableproperty belonging to us be possessed by us, the above named,
during the lifetime of both of us , and in the event of one of
us predeceasing the other, the above-named property be possessedaccording to the wish and dealt with according to the pleasure ofthe survivor.”
I think that the construction placed by the learned DistrictJudge on the joint will with which we are here concerned is wrong,and I would set aside the decree under appeal and direct that therespondents’ action be dismissed, with the costs of the action midof the appeal.
Bet aside.
* (1872) L. R. 4 P. C. 286.
* (1879) 6 A. C. 137.
1918.
WoodBbnton J.
Wirasinghev. Rejopakse