DE SILVA v. DE ALWIS

002-NLR-NLR-V-40-DE-SILVA-v.-DE-ALWIS.pdf


de Silva v. de Alwis.
7
1937 Present: Abrahams C.J., Poyser S.P.JT. and Maartensz 3.
DE SILVA v. DE ALWIS276—D. C- Colombo, 397.
Joint will—Massing of property for joint disposition—Meaning of property in" reversion, remainder or expectancy ”—Contingent interest included in. disposition—Power of the survivor to alienate separate property—Sepa-rate property includes contingent interest—Forfeiture on remarriage.Where a joint will of husband and wife was expressed in the followingterms:
“We do hereby give and devise to the survivor of us all our immovableproperty whatsoever and wherever situate and whether in possession,reversion, remainder or expectancy, nothing excepted, subject to theexpress condition that such survivor shall not sell, lease, mortgage orotherwise alienate or encumber any such property but shall only enjoythe rents, profits and income thereof during his or her natural life andthat after his or her death the said property "shall devolve on our childrenabsolutely ….
de .Silva v. de Allots.
“ it Is our will and desire that, if on the death of either of us, the sur-vivor shall marry again, he or she shall thereupon forfeit all the life-interest hereby given to the survivor and such survivor so marrying again‘ shall not be entitled to the income of any of our immovable property andall our immovable property shall immediately devolve absolutely on ourchildren ”,—
Held, that the property of the spouses had been massed for thepurpose of a joint disposition and that the survivor had no power, afteradiating the inheritance, to dispose of her separate property.
The separate property, which could not be alienated, included propertyof which the survivor had only a contingent interest at the time of thewill and which vested in her after the death of the other spouse.
Held, further, that the expression in reversion, remainder or expectancyincluded property of which the survivor had only a contingent interest,as for' example, the interest of a fideicommissary and that the dispositionof such a contingent interest was valid under the Boman-Dutch law.
Held, also, that the forfeiture clause operated to deprive the survivoron re-marriage of her life-interest in her own property as well as in thatof the first-dying spouse.
HE plaintiff instituted the present action for declaration of title to
an undivided 1/16 share of a land called Bogahawatta, situated at
Gasworks street in the Pettah against- the four defendants, who are hisstep children, being, the children of his wife by J. P. de Alwis. Theplaintiff alleged that his wife executed a deed of gift, in his favour whereby >she purported to convey the undivided 1/16 share. Sometime after theexecution of the deed of gift, the plaintiff executed a lease in favour of thedonor in respect of the undivided share and allowed her to remain inpossession of the property as lessee; after the termination of the lease, hiswife Eugenie remained in possession and continued to appropriate therents, notwithstanding the termination of the lease. When the plaintiffinstituted action against Eugenie, for the recovery of the rents, asoverholding tenant, subsequent to the determination of the lease, she,set up the defence, that in 1913, during the lifetime of her first husbandshe executed a joint lastwill'whereby she forfeited her share of the propertyto her children consequent on her marriage to the plaintiff and accordinglyher deed of gift in favour of the plaintiff was ineffectual to pass title,that her children were now appropriating the rents, and that she has nointerest in the property. Accordingly the plaintiff instituted the presentaction against the defendants for declaration of title and mesne profits.The defendants pleaded—
That the deed in favour of the plaintiff conveyed no title ;
that it was not open to Eugenie to execute the deed of gift in theplaintiff’s favour. She having executed a joint will with her husbandwhereby she forfeited all property in remainder, reversion, or expect-ancy, and that she having adiated the inheritance and accepted benefitsunder the joint will it was not open to her to make a dispositionrepudiating the terms of the will;, she remained in possession and didso on behalf of the defendants.
The learned District Judge dismissed the plaintiff’s action holding—(1) that he was bound by the Supreme Court judgment in de Silva v. deSilva as regards the interpretation of the last will; (2) that there was
> 37. N. L. R. 388.
T
de Silva v. de Alwis.
9
sufficient evidence o£ adiation; (3) that inasmuch as the mother wasthe guardian of the defendants, she could not acquire a title adverse tothe defendants. From this judgment the plaintiff appealed and theappeal was first argued before Hearne and Fernando JJ. who referred thecase to a divisional bench.
Hay ley, K.C. (with him N. Nadar ajah, H. E. Amerasinghe, andMackenzie Pereira), for plaintiff, appellant.—Eugenie owned $ share of theproperty. By her last will executed jointly with her first husband in1913, No. 8,249, D 12—a mutual will—her rights in both her husband’sand her own property devolved on a second marriage on the defendantswho were the children of the first marriage. By the judgment in theDistrict Court of Colombo it was decided that .Eugenie forfeited all herrights on her second marriage.
But by deed 94 of May 1, 1926, she conveyed a half of her property tothe plaintiff, her second husband whom she had married in 1920. Thus•if she forfeited under the will of 1913, she had nothing to convey on deedof 1926. Eugenie married Polycarp de Alwis, her first husband, in 1898.'
By deed of gift P 1, No. 1792, John Henry Fernando got i of the entireproperty. This deed of gift was subject to a prohibition against alienation,and it contained several conditions—vide judgment—affecting thedevolution of this estate of John Henry Fernando. As his son Georgepredeceased him his daughters Eugenie and Mary became each entitled toJ share. But as the joint will came into operation in 1913, the propertydid not devolve on Eugenie till six years later, the date of her father’s death.
In June 1926 (by bond No. 95) the plaintiff leased the property back tothe wife for six years. Subsequently quarrels arose between husbandand wife, and in 1930 the plaintiff filed action on the lease, but this casewas settled. Again in 1933, the plaintiff brought another action and itwas in this action for the first time that the wife pleaded that she had notitle on account of- the forfeiture under the will. Then the plaintiff’saction was dismissed. In 1934 a third action was filed, wherein theplaintiff was more successful. At this time the parties were living inseparation. Though in'her answer the wife took up the plea of forfeitureof her rights, the plaintiff obtained judgment, the District Judge holdingthat he had title. This judgment was set aside by the Supreme Court.
The points in this appeal are : (1) The will does not apply to after-acquired property, as is the case of the property in dispute. (2) Doesthe will apply to Eugenie’s property at all ?—Vide the forfeiture clause.
There is no such massing and adiation as a condition precedent tobind the surviving spouse.
The plaintiff got an undivided 1/16 share; up to date, for fifteen years,the plaintiff and his wife were in possession adverse to that of Eugenie’schildren—the four defendants. All except the fourth were majors.
H. V. Perera, K.C. (with him C. V. Ranawake and D. W. Fernando), fordefendants, respondents.—Whether the joint will catches up Bogaha-watta has to be decided. The words “ expectancy, nothing exfcepted ”,were intended to catch up every kind of estate including a contingentremainder, which is an expectancy in the strict sense. “ Espectancy ”is used in a broad popular sense to mean any kind of hope, a mere chanceas opposed to an <f expectancy ” in law.
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de Silva v. de Allots.
Vide Finance Act, 1894, where an interest in expectancy is equivalentto an estate in remainder or reversion and every future interest is one,whether vested or contingent (vide 5 Encyl. Laws of England 612 (2nd. ed.).)An estate in expectancy as opposed to an estate in possession is equivalentto a. reversion, remainder) or executive interests (vide 12 Encycl. 648).An expectancy includes a remainder, and a remainder includes a vestedand a contingent remainder (vide 3 Encycl. 514). A contingent remainderfreight never vest. But here, all events are contemplated by the actualinstrument, e.g., the rights to the property to vest in A; failing A’sappointment, to vest in his sons, and failing sons, in his daughters.
A person who hopes to marry a daughter or who is engaged to one doesnot belong presently to a class of persons who will get the property onthe happening of a contingency. He has no contingent interest. Aperson who may be the next of kin is not a person having a contingentinterest. As regards a contingent interest in land (vide 5 Encyl. 339).
After-acquired property means:(1) property acquired afterwards by
virtue .of a contingent interest, (2) property not referable to a contingentinterest.
Property in expectancy may or may not be transmissible; as thetransfer may not- be the ultimate fideicommissary. Where property isto devolve from A to B and from B to C, and where B predeceases A, theinterest does not pass to C, as a contingent interest it cannot survive aperson. It cannot be a vested interest.
When dealing with a contingent remainder, it is immaterial whether'the Contingency is precedent or subsequent. (2 Blackstone. ch. 11.) Acontingent interest cannot survive the death of the owner of the Interest.Here, therefore it is caught up, the whole of the property is thrown intoone mass.
In re Parsons, Stockley v. ParsonsKay J. held that a spes successioniswas not a contingent interest. The next of kin has to be ascertained asat a future date. But here the parties are the children. The class ofdaughters is a clear and real class, and on the happening of the event willget the property.
Vide Green v. Meinallwhich held that the spes successionis which thebrother of a person has during his lifetime to a share of his property asone of his next of kin, in the event of his dying intestate, is not an “interestin expectancy ”. Here there is a contingent limitation in favour of aclass, and my clients are certain members of that class. An expectancyin law -is a contingency. If the events must happen, then there is avested interest. Vide Gunatilleke v. Fernando" as to the alienability of acontingent interest.
• Here all the immovable property was massed, and there is a jointdisposition of the whole property, irrespective of its kind; and thisdisposition'is equivalent to massing. The whole of the joint propertywas massed together so as to go. over to “ our children ” on the remarriageof the surviving spouse. N.B. the words “nothing excepted”. Theproperty is described as “ our property ” and not mine or yours. It istherefore clearly a joint disposition of the property consolidated into amass.
(1911) 2 L. R. Ch. Div. 275.
a 22 N. L. R. 385, at p. 393.
1 (1890) 45 Ch. Div. 51.
de Silva v. de Alwis.
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The joint will further provides that on the death of one, the survivorshall have a life-interest, but after the death of the survivor, the childrenare to have the full interest. If there is a joint disposition after thedeath of the survivor, then there is massing of the property. Furtherthe prohibition against alienation applies to the property of both, notonly to the property of the first-dying.
A fidei commissum imposed on the children makes the massing all thegreater. The rest of the property, on the death of the survivor devolvesabsolutely on the children ; the point of time at which this devolution isto take place is advanced if the survivor remarries. N.B.—“All the life-interest hereby given” and “all our immovable property shall devolveabsolutely on our children”, in the event of a remarriage. The propertyin respect of which the disposition ‘ passing over, forfeiture on remarriage ’—is the massed property—our property. She can keep to herself awindfall or a legacy subsequently bequeathed to her.
Unless this contingent interest is caught up, she contributes nothing.It is quite clear that the whole of the property is to be passed over, for thewords used are “ any of our ” and not any of the other’s property, i.e.,a joint disposition after the deceased first dying—-vide Steyn 143. Inthis case, there are two dispositions :(1) a joint disposition after the
deceased first dying, and (2) a disposition on the remarriage of thesurvivor.
The appellant argued that this joint will must be construed as theseparate will of each ; and it was asked how the property could pass to athird party under her joint will. Vide Samaradivakara v. De Sararnwhich held that the rights of a survivor can pass to a devise during thelifetime of the survivor. Therefore it is possible by joint will to givebequests to legatee, e.g., “ 2/3 of our property to go to the children on thedeath of one of the parties to the joint will ”. Here the will deprives thewidow of her £ share.
It was contended for the appellant that the property of the survivorcannot pass till her death. It is true that the legal title has not passed.All the rights of the children are equivalent to rights in personam inrespect of the property against the survivor on her remarriage. There-fore, the children could sue her. The defences available against thesurvivor are available also against a volunteer from the survivor. Anaction as well as an exception (if in possession) is available to the childrenhere. Here the plaintiff is a volunteer.
If you are dealing with a survivor or a volunteer under her, you are notto analyse the will and the origin of the property devised. It is not sowith the case of a stranger. The case of Samaradivakara v. De Saram1(Supra) is a complete answer to the contention of the appellantregarding adiation. The testator could not prevent the property fromgoing to the children on the joint will, though the property was her ownproperty. Still there is a right in personam against her.
Community is not necessary for the purpose of massing in a joint will(Vide Steyn 155 and S. Aft. L. R. (1915) 64 at pp. 77, 78.) Where eachspouse could have dealt with the whole of the common property with theconsent of the other. Here there is a right in personam in respect of a
* 14 N. L. R. 321.
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de Silva v. de Alwis.
particular piece of land. (N.B.—The Act of 1915 made it a right in rem.)Vide Jones’ Leading cases on S. 'African Law—Persons, Part 1., p. 101Where the alienation is by the survivor, a gift is not permitted.
Adiation can take place at any time. A person who takes the propertytakes it, subject to the instrument. He takes a defeasible title. Till theadiation by the survivor, there are two wills. Once adiation takes place,there is a joint disposition of massed property. If the contest is betweenthe beneficiaries and a stranger, then again there would be two wills.If the survivor has taken a benefit—here, the enjoyment of the rights inthe property—there is sufficient adiation. In this case.the widow couldnot elect between testacy and intestacy. You cannot assume a fictitiousintestacy, while in a community marriage, each has half the propertyeven in the case of a testacy.. One must either adiate or repudiate.(3 Nathan 1844.) A wife married in community can say ‘ my half shareis separate till I dieBut here, she cannot refer the possession of“ Rosendale ” and “ Carlwill ”, as by right. An adiation arises where thereis a receipt of a benefit under the will. Here there is the collection of rentsby Eugenie from the date of her mother-in-law’s death, 1919, till her secondmarriage. She had not the benefit of Bogahawatta as her farther diedin 1919. But however small the benefit she enjoyed, it was not referable•to any other right ; this it is sufficient to show adiation. Eugenie is livingin Carlwill by virtue of her rights under the will.
As regards prescription the suggestion was made that the mother wasprescribing against her children. In 1920 only the eldest child hadattained majority. The four children (defendants) were born in theyears 1899, 1901, 1902, and 1909 respectively. The plaintiff alleges anouster on May 1, 1933. '
Therefore with regard to the last (4th) defendant, prescription cannotrun against her. Regarding the third defendant, if one takes the date ofouster from the plaint, there is no prescription against him as well. Butplaintiff had no possession of the properties in 1926. – The only possiblemethod of occupying these premises was in the collection of rents" Till1926, the rents were collected by thO second son, sometimes by her and attimes by her second husband, the plaintiff. -The question then is whetherafter the deed of gift in 1926, the plaintiff had possession. Eugenie saysthat there was no alteration at all in the way the rents were received.
As between mother and children, they were getting a portion of therents. There is no adverse possession where she continues to give rentsto the children. She was in a position to possess adversely ; one is notautomatically in adverse possession.
Enjoyment follows the title to. the property. The fourth defendantwas educated at the convent and her mother bore her expenses. Onecannot say that the mother’s possession was adverse when a reconciliationhad'been brought about between her and her children. It was when thelease was executed that she realized that her second husband wished todeprive her children of their property. But possession depends on thereality of getting the rents from the wife.
.Though deeds had been executed, she did not surrender possession.From 1920 to 1926, she gave a portion of the rents to her children. Thus
de Silva v. de Alwis.
13
no prescription arises as the action was in 1934. The plaintiff used toappropriate a part of the rents, but the children’s rights were never denied.
Thus if the plaintiff could not count on any possession by the wifehe is bound to fail on the plea of prescription.
For conveyancing, we need not go back to the Roman-Dutch law.
Hayley, K.C., in reply.—To deal with the issue of prescription. Hasthere been any case whereby a mother purports to forfeit all her property,by will ? From 1919 Eugenie was the absolute owner of the property.It is immaterial to the plaintiff whether it is on her husband’s or her title.There must be proof of payment of rents to prove an acknowledgment ofthe children’s title.
Plaintiff is entitled to judgment against the first two defendants asthey have not asked for a declaration in their favour. Therefore he isentitled as against these two defendants, to his 1/16 share of the property.
Each defendant cannot plead the title of the other to his benefit. Ifdefendants asked for title, they would have to ask for S, the whole of themother’s estate. But here they are barred—vide section 207 of the CivilProcedure Code.
“ Possession in remainder, reversion or expectancy ” is taken over inSouth Africa from English practice.—Vide Tenent’s Notary’s Manual.These terms are simply a description of property. Vide 28 Halsbury 694—“ All our property ”. Is the property such as could be included in a will ?Could it be dealt with under Ordinance No. 21 of 1844, section 1 ? Whydoes a spes successionis differ from succession under fidei commissum ?English law paid attention to the whole estate in real property ; unlikethe Roman-Dutch law. Every form of expectancy may be a' contin-gency. Therefore a spes successionis is a contingent remainder. The-question is, does it give an actual present interest or a mere spessuccessionis. A can have an estate for life. B the vested remainder, andC can get the contingent remainder. Vide 24 Halsbury 220 for classi-fication of a contingent remainder. The class who are to get on a con-tingency are having only a spes successionis. According to P 1 '(in favourof J. Henry Fernando), till J. H. Fernando dies, one cannot say whatshares the heirs would get. He might have other daughters. If Eugenieis certain to get something, there is an expectancy. Eugenie’s interestsexpire with herself. If she died before her father, she would have leftnothing. Vide Cowes v. Williams quoted in In re Parsons.
There is no meaning in creating a life estate in Roman-Dutch law.Roman-Dutch law.does it by a fidei commissum. If Eugenie died beforeher father, the property would not go to her children as heirs, but woulddevolve under P 1.
Eugenie had no status till her father died without male children. Shehad no saleable interest. Exercise of powers of appointment by. otherswould not give her a status or right. Regarding the position of an heir—Vide (5 Encycl. 334). In English law dominium is absolute ownership inreality—a vested estate as opposed to an estate in expectancy (p: 339).
Where the enjoyment is present enjoyment, you get possession; whereit is in the future, you get an expectancy ; where it is by operation of law,there is a reversion, and where it is by the act of parties, there arises a.remainder.
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de Silva v. de Allots.
“ Vested The Roman-Dutch law deals only with ownership andnot with “ estates Both title and possession are required. If neitherexists, then there are no interests whatsoever. Thus if estates are notvested? under Roman-Dutch law, one cannot convey an interest in them.(Vide Lees' Introd. L.R.D.L. p. 348; Vander Linden, bk. 1, ch. 9s. 8, p. 137,of Henry’s Translation.)
Until 1845, by the Real Property Act, contingent interests were nottransmissible in English' law. The person must wait till the event takesplace.
[Maartensz J.—By the time Eugenie died, did the property vest in her?The joint estate continues till Eugenie dies. What is the joint estate isto be determined at the death of both joint testators. By virtue of thejoint will the property devolves on her children at her death.]
After acquired property does not pass on Eugenie’s death, the joint willbecomes a separate will. What she has alienated goes out and onlywhat is left, goes to the children.
In this case if Eugenie or Mary die, the property is not to go to theirheirs, but to their uncles Martinus or James.
[Abrahams C.J.—This property is not exempt from seizure, section218 (Jc), because they are not transmissible by will.]
The Supreme Court has held that under this section a fidei commissumdoes not come. Vide Mohammed Bhoy v. Lebbe Maricar', where thewords in section 218 (Jc) have been interpreted. This case held that theinterests of a fidei commissarius cannot be sold in execution during thelifetime of the fiduciaries, as it is a contingent interest within meaning ofsection 218 (Jc).
The case Gunatileke v. Fernando', does not stand in my way; the obiterof the Privy Council is in support of my contention. There, subsequentto the sale, the vendor got good title. Semble, if the alleged vendor hadno title. The subsequent title of the vendor will enure to the benefit ofthe purchaser. But here the property is “ our property ”.
[Abrahams C.J.—Does not Gunatileke v. Fernando show a contingentinterest in property ?]
There is no indication that a contingent interest cannot be alienated.
[Abrahams C.J.—Does this property form part of “ our property ”at the date of the will ?]
Property that does not belong to you could be sold under the authorityof the 22 N. L. R. case. This case deals entirely with the terms of acontract, rei venditae et traditae, and not with any dominium existing atthe time. Here it is “our property ”; therefore the Privy Councilobservation regarding a shadowy spes does not cover “ our property ”.
[Maartensz J.—Would not the phrase “ property in expectancy ”cover property acquired after the will, but which was existing before ?]Subsequent acquisitions of dominium cannot come into the will.
There was no indication that the future property was mentioned. VideMessina v. Messina*, which included all the property existing at the dateof the death of the second dying. Vide Grotius 2, 47, 2—“A right inexpectancy is one by virtue of which ownership must at some time orother, come to him ”, and not a contingent interest.
« 15 N. I.. R. 466.2 22 N. L. R. 385 P. C.
» 11923) B. D. L. 462.
MAARTENSZ J.—de Silva v. de Ahois.
15
As regards forfeiture, under the clause “we give our property”—videMosterts’ case. There would be two separate wills. The latter portionof the will is only on a contractual basis. The question then, is what domi-nium Eugenie had in 1913, when her husband died. Dominium was not inher. The respondent laid great emphasis on the forfeiture of the life-interesthereby given in “ our property ”. Our property means my property oryour property as the case may be. My property can only mean “ whichI, the husband, can give you, the wife ”. Thus there are two separatewills; a joint will of two separate persons together. Here, that whichcan be forfeited if the life-interest obtained from the other. Supposingshe had no children, would her property also go to her husband’s heirsab intestato ?
The property over which the forfeiture works is'the life-interest.
[Maartensz J.—The District Judge has found that she forfeited all herinterests on her remarriage.]
No man would undertake to hand over all his property to his childrenon his remarriage.
A clause taking off all her property is too drastic. A clause to preventthe remarriage of a surviving spouse has not been heard of.
Cur. adv. vult.
December 17, 1937. Maartensz J.—
The plaintiff in this action appeals from a decree of the District Courtof Colombo dismissing with costs his action for declaration of title to anundivided 1/16 share of a land called Bogahawatta, which consists of anumber of houses and tenements bearing assessment numbers allotted toDam street and Gasworks street.
An undivided f share of Bogahawatta admittedly belonged to AdrianaSwaris. She by deed No. 1792 (P 1) dated October 8, 1894, gifted anundivided i share to her son John Henry Fernando subject to certainconditiqns, which I shall presently refer to in detail.
John Henry Fernando died on July 23, 1919, leaving two daughters’ Mary and Eugenie who in terms of the deed of gift became each entitledto an undivided i share.
Eugenie by deed No. 94, dated May 1, 1926 (P 2), gifted an undivided1/16 share of Bogahawatta to the plaintiff who is her second husband.She married him on December 11, 1920. The plaintiff’s claim to title isbased on this deed of gift. "He averred in his plaint that the defendants,who are Eugenie’s children by hdr first husband, James Polycarp deAlwis (hereafter referred to as de Alwis) ousted him in May, 1933.
The defendants pleaded in their answer that by virtue of a joint lastwill No. 8,249 executed by Eugenie and her first husband, de Alwis (hedied on August 18, 1913), the rights of Eugenie on her second marriagewith the plaintiff devolved on her children the defendants, and theydenied the plaintiff’s title to the share claimed by him under the deed ofgift No. 94 (P 2).
The following issues were framed in the District Court on the defenceset up by the defendants: —
Issue (1).—Did the joint last will No. 8,249 of August 13, 1913, coverthe property which devolved on Eugenie after the. death of heirfirst husband? (It is admitted that the property in dispute
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MAARTENSZ J.—de Silva v. de Alwis.
devolved on Eugenie subsequent to the death of her firsthusband.)
Issue (4).—Did Eugenie forfeit on her marriage to the plaintiff herrights to 4 share of the property which devolved on her?
This will was judicially interpreted in Silva v. Silva1 case No.'839 ofthe District Court of Colombo, which was an action brought by Silva (theplaintiff in this action) to recover from his wife Eugenie his 1/16 share ofthe rents of the premises Bogahawatta which he alleged she had collectedand retained from May, 1933. It was there held iii effect that the jointwill extended to property acquired by the testatrix after the death of thetestator and that she had no disposing power over Bogahawatta, and theplaintiff’s action was dismissed.
The District Judge in this action held that he was bound by the decisionin .Silva v. Silva (supra) and answered the issues quoted above in the affir-mative. He also held that -Eugenie had adiated the inheritance.
The plaintiff’s action was accordingly dismissed.
This appeal which was first argued before Hearne and Fernando JJ.was, for the reasons specified in the reference, referred to a fuller Benchfor decision.
The result of the appeal depends, in the main,- on the construction ofthe joint will executed by Eugenie and de Alwis and on the effect of the.deed of gift No. 1,792 (PI) executed %by Adriana Swaris in favour ofJohn Henry Fernando. As it is earlier in date, I shall first set out theterms of the deed of gift.
The gift to John Henry Fernando is subject to a prohibition againstalienation either lay will or deed with the proviso that “ it shall be lawfulfor John Henry Fernando to give or appoint by last wilbor deed subject tosuch conditions or restrictions as he may think proper the said sharehereby assigned to him unto ” (the person or persons are specified in thedeed of gift).
The deed further provided—
that if John Henry Fernando died without making any gift orappointment his share should devolve on his male children or childwho survived him, or, if they predeceased him, on their lawful childrenor other descendants;
that failing male children and their descendants, the i shareshould devolve on John Henry Fernando’s lawful female children orchild, or if they predeceased John Henry Fernando, on their lawfulchild, children or other descendants by representation;
that in the event of the entire failure of all the children, grand-children, or other descendants of the said John Henry Fernando, hisshare should devolve on Martinus Fernando and James Fernando or ifthey or either of them be dead, then on their or his children anddescendants by representation.
The relevant provisions of the will are as follows:—This is the jointlast will and testament of us, James Polycarp de Alwis and Eugenie de-Alwis, husband and wife, residing at ‘ Carlwill ’, in Colpetty, Colombo
1 (1935) 37 N. L. R. 388.
MAARTENSZ J.—de Silva v. de Alvois.
17
“ We do hereby give and devise to the survivor of us all our immovableproperty whatsoever and wheresoever situate and whether in possession,reversion remainder or expectancy nothing excepted subject to theexpress condition thpt such survivor shall not sell, lease, mortgage orotherwise alienate or encumber any such property but shall only enjoythe rents, profit, and income thereof during his or her natural life and thatafter his or her death the said property shall devolve on our children,absolutely in the following manner : —
“ The house and premises called and known as ‘ Carlwill ’…-
shall devolve on our eldest son James Charles Wilfred de Alwis and thehouse and premises called and known as ‘ Rosendale ’. shall;
devolve on our other three children in equal undivided shares
(Here follows a prohibition against alienation for the benefit of thechildren of the devisees.)
“ All the rest and residue of our immovable property shall on the deathof the survivor of us devolve on all our four children absolutely in equalshares.
“ It is our will and desire that if on the death of either of us the survivorshall marry again he or she shall thereupon forfeit all the life-interesthereby given to the survivor and such survivor so marrying again shallnot be entitled to the income of any of our immovable property and allour immovable property shall immediately devolve absolutely on ourchildren in manner above mentioned ”.
Eugenie died on June 20, 1937, without revoking the will.
It would appear from the judgment of Koch J. in Silva v. Silva {supra)that, according to the evidence in that case, Eugepie had nothing atthe date of the execution of the will. It is however not clear from theevidence in the present action that that was so, and I think the will shouldbe construed without regard to whether she had property or not.
The appellant’s first contention was that the terms of the will were notsufficiently explicit to deprive Eugenie, even if there was a massing of theestates, of her right to dispose of property acquired by her after the deathof the testator. In support of this contention we were referred to ‘?teyn.on Wills, p. 143, and the case of Messina v. Messina1. The report isnot available, but there is a statement of the facts and the decision of theCourt in Bisset & Smith’s Digest of South African Case Law (1923),columns 306 and 307.
It is unnecessary to discuss this contention as the respondents’ Counselsubmitted that it was not necessary for him to maintain that the willextended to property acquired by the testatrix after the death of thetestator as his contention as regards Bogahawatta is that there was adisposition of this property by the will which dealt with all immovableproperty “ whether in possession, reversion, remainder or expectancyThe appellant, however, argued that the interest Eugenie had inBogahawatta when the will was executed was not more than a spessuccessionis analogous to the interest which the next-of-kin of an intestatehad before the death of the intestate, which was held not to be aninterest in expectancy ” protected by section 2 ,of The Deceased Wife’sSister’s Marriage Act, 1907, in the case of Green v. Meinall ’ The
l (1923) E. D. L. 462.*11911) 2 L. U. Ch. Die. 275.
40/6
18
MAARTENSZ J.—de Silva v. de Alwis.
authority for this ruling was the case of In re Parsons Stockley v. Parsonsl,where it was laid down that “ it is indisputable law that no one can haveany estate or interest, at law or in equity, contingent or other in theproperty of a living person to which he hopes to succeed as heir-at-law ornext-of-kin of such living person. During the life of such person no onecan have more than a spes successionis, an expectation or hope ofsucceeding to his property.
The law is the same where there is a limitation by will or settlement ofreal or personal property to the heir or statutory next of kin of a livingperson. During his life no One can say, “ I have a contingent estate orinterest as possible heir or next of kin”; just as in the first case no onecan have more than an expectation or hope of being heir or next of kin”.
Kay j. in the course of his judgment said, with reference to an Irishcase In re Besupre’s Trusts * where the contrary was held,
‘ The point of difference to state it shortly is this : ‘ Nemo est haeresoiventis ’ should be construed literally. There is no such character in lawas the heir of a living person or as his statutory next-of-kin. There is awide difference, for this reason, between a gift to such of the “ children ”or “ nephews ” or even “ kindred ” of A who shall be living at his death,and a gift to those who shall then be his statutory next-of-kin. DuringA’s life there may be children, nephews, or kindred. Each of them hasprobably sufficient interest, though contingent, to take proceedings toprotect the fund—see per Lord Hatherley. in Joel v. Millss. Some or allof them might be made defendants in an action to administer the trusts.Neither of these things can be done where the gift is to statutory next ofkin. They have no existence whatever in law while the propositus isliving. No one 'can as possible next-of-kin even bring an action toperpetuate testimony as to his kinship during that period. I am unableto agree with the judgments which consider these cases as parallel ”.The respondents relied on this passage in support of their contention thatunder the deed P 1 Eugenie had more than a spes successionis.
Now in the case of Selembram et al. v. Perumal et al. ‘ a bequest of ahouse to A and M subject to the condition that they shall not sell, mortgageor in any way alienate the said house and premises, but that the same shallbe always held and possessed by them and their heirs in perpetuity underthe bond of fidei commissum was held to create a valid fidei commissure, infavour of the heirs ab intestato of A. and M for the full period allowed bylaw. The.decision would be equally applicable to a gift of the propertyto A and M subject to the same conditions. Here the heirs ab intestatonot being ascertainable until the death of the donees it would not be open. to any person who would be an heir ab intestato if they were dead to takeany steps to safeguard his interests during the lifetime of the donees.
In P 1, however, the female children are an ascertainable class, and ifanyone set up a claim to the property gifted by virture of a deed of giftwhich he alleged was executed by John Henry Fernando in pursuance ofthe power reserved to him by the deed, it would, in my opinion, have beenopen to Eugenie to impeach the deed as a forgery, if that was the case,
during the lifetime, of the. donee.
J (1890) L. ft. 45 Ch. Dio. 51.
2 21 •L. R. Ir^,397.
» 3 K. .t J. 474.
« (1912) 16 N. L. R. 6.
19
MAARTENSZ J.—de Silva v. de Alwis.
■■“ – ■ ■ 1—nr
In my judgment the distinction drawn by Kay J. between a gift to anascertainable class and a gift to an heir ab intestate is applicable to thedeed P 1, and I accordingly hold that Eugenie had more than a spessucpessionis of the nature which was held by Kay J. not to create aninterest in English Law.
Again, after the deed of gift P 1 was accepted by John Henry Fernando,the donor could not by any subsequent act deprive him of the interestcreated by the deed of gift. (John Perera v. Avoo Lebbe MarikarSoysa v. Mohideen'.)
Eugenie clearly had a contingent interest. In the case of Gunatilleke v.Fernandoa, it was held that under the Roman-Dutch law a vested interestin remainder can be alienated. Similarly, an alienation of a contingentinterest is not prohibited and an instrument purporting to alienate suchan interest was not null and void. In that case the beneficiaries, who hada contingent interest under a deed of gift, sold the property which wasthe subject of the gift to plaintiff’s predecessor in title before the contin-gencies happened. The contingencies subsequently, happened and thevendors acquired title. In the Privy Council the plaintiff relied ontwo arguments:
That the subsequent acquisition enured to the benefit of the vendeeand his successors, in title ;
That the vendors did not know what interest they had, but pur-ported to assign all they had got, and they had a contingent interestwhich ultimately vested and is now vested in possession. Botharguments were upheld. With regard to the latter argument LordPhillimore said, “ that under the Roman-Dutch law a vested interest inremainder can' be alienated must be admitted. Both sides claim titleunder transfers made during the lifetime of Maria. The Roman lawsaw no objection in principle to the transfer of "things not yet come intoexistence (Dig., lib. XVIII.. tit, 1, ss. 8 arid 34). But as to the,alienability of a contingent interest, there appears to be a dearth ofauthority. None has. been brought to their Lordships’ notice. Nodoubt the spes which such a remainder-man can alienate is a very shadowyone, for if he predeceases the fiduciary, his heirs take nothing (Pereira’sLaws of Ceylon (2nd ed.), p. 467), and therefore the alienee could takenothing.. But there is, at any rate, no indication either that such analienation is prohibited by the policy of the law, or that an instrumentpurporting to alienate is so null and void that it cannot be looked at forany purpose
The decision in this .case is strong authority that a contingent interestcould be alienated, and I see no reason why it should not be disposed ofby will. Of course, if the testator predeceased John Henry Fernando,her heirs under the will would take nothing; but if she died with a vestedinterest the heirs would succeed in terms of the will.
The next question is whether by the terms of the will Eugenie diddispose of her contingent interest. The respondent in support of thecontention that there was such a disposition, relied on (the words of thedevise which gave to the survivor all “ our immovable property ….whether in possession, reversion, remainder or expectancy ”, particularlyi (2884) 6 S. C. C. 138.2 (2914) 27 N. L. B. 279.
(1921) 22 N. L. R. 38o.
20
MAARTENSZ J.—de Silva v. de Alwis.
the words in italics. It was argued that the definitions of theseexpressions in Wood Renton’s Encyclopedia of the Laws of England, vol. Ill,p. 514, vol. V, p. 339, and vol. XII, p. 648 would include the contingentinterest created by the deed P 1.
In vol. III. p. 514, a contingent remainder is defined as “ an estatelimited, to take effect in remainder, that is, to come into possession onthe regular determination of some prior estate less than fee-simple(called the particular estate), but to arise only in case some event orevents which may or may not happen before the particular estate shallcome to an end, shall happen. It is an estate in remainder of which thevesting in interest is made subject to a condition precedent ”.
In vol. V, p. 339, an estate in expectancy is defined as an estate“the enjoyment whereof is future”, which may be in remainder orreversion according to whether it arises by agreement or by operation oflaw. An estate in expectancy as distinguished from an estate in posses-sion is described as an estate the right to the possession of which will onlyarise at a future date, e.g., on the determination of a^prior life estate.
In vol. XII, p. 648, remainder is defined as “ an estate in expect-ancy ”, that is to the same extent as a reversion, an incorporeal here-ditament, though not a “ purely incorporeal hereditament ”.
We were also referred to Chapter XI. of Blackstone’s- Commentaries(Kerr’s edition), vol. II., entitled “ of estates in possession, remainder,and reversion ”.
Mr. Hayley for the appellant urged that the English law of real propertywas not applicable to the interest, if any, created by P 1. But somemeaning must be given to the expressions relied on by the respondent.The expressions according to the definition referred to above, are appli-cable to the interest Eugenie had under the deed P 1 and I accordinglyhold that the devise amounted to a disposition of that interest.
Mr. Hayley next argued that a contingent interest was not disposableby will under the provisions of section 1 of Ordinance No. 21 of 1844entitled “ An Ordinance to make better provision for the disposal ofLanded Property ”.
The relevant provision is as follows : —“ It -shall be lawful for everyperson competent' to make a will to devise, bequeath, and dispose of bywill all the property within this Colony which at the time of his deathshall belong to him, or to which he -shall be then entitled, of whatsoevernature or description the same may be, movable or immovable, and alland every estate, right, share, or interest in any property, and which ifnot so devised, bequeathed, or disposed of would devolve upon hisheirs-at-law, executor, or administrator …. ”.
Now, as I said before, the disposition would be of no avail if this was asingle will and Eugenie predeceased John Henry Fernando; but if shesurvived him, and she was vested with the property, the dispositionwould not be obnoxious .to section 1 as her interest would, but for thewill, devolve on her heirs-at-law, executor or administrator.
Eugenie Fernando was vested with the property when she died in June,1937.. But the testator de Alwis died before the event and it was arguedfor the appellant that the disposition of Bogahawatta assuming therewas a disposition, therefore failed. It was also contended that there
MAARTENSZ J.—de Silva v. de Alvois.
21
was no massing of the joint estate, that Eugenie had not adiated theinheritance, and that she therefore had the right to execute the deed ofgift (P 2) relied on by the plaintiff in derogation of the will.
The case of Denyssen v. Mostert *, relied on by the respondents settledthe law on the following points, formulated as rules in Steyn’s Law ofWills, p. 126, thus:
Rule 1.—“ That joint or mutual wills, notwithstanding their formare to be read as separate wills, the disposition of each spouse beingtreated as applicable to his or her half of the joint estate.
. Note.—This is so even though the joint will of the spouses providesthat it should be deemed to be our will after our death, becausein such a case the words after our death must' be construed tomean after the death of the testator and testatrix respectively.
If the survivor makes no other will, then, unless the joint will was soframed as to be only the will of the first-dying, it will also bethe will of the survivor. This is so even though the survivormay have remarried.
Rule 2.—That each spouse is at liberty to revoke his or her part ofthe will during the co-testator’s lifetime, with or without communi-cation with the co-testator, and after the co-testator’s death.
This rule is subject to an important exception, viz.: —
Rule 3.—That the power which the surviying spouse generally hasto revoke the mutual will as far as it affects half of the property (i.e.,the survivor’s share of the community) is taken away on theconcurrence of two conditions : —
(i.) That the will disposed of the joint property of the testators onthe death of the survivor, or, as it is sometimes expressed,where the property is consolidated into one mass for thepurpose of a joint disposition, and
(ii.) that the survivor has accepted some benefit under the willThe spouses in that case were married in community of property.Eugenie and de Alwis, although not married in community of property,could validly make a joint' will (Steyn on Wills, p. 126) ; and “theprinciples applicable to this class of will are, generally speaking, the sameas those which apply t"o a joint will made by persons married in communityof property ”. (Ibid, page 155). Steyn notes that section 115 of an Actwhich is referred to as Act 24 of 1913 applies only to the massed .estatesof spouses married in community, and that “ where there has been amassing and adiation under a will of persons married out of community.. .. the principles which govern the rights of heirs, legatees and
creditors must be sought in cases on massing prior to 1913 ”.
Section 115 enacts as follows: “ Where two spouses, married in com-munity, have by their mutual will massed the whole or any portion oftheir joint estate, and disposed of it after the death of the survivor,conferring upon the latter a fiduciary, usufructuary, or other limited,interest therein, then upon the death of either such spouses after thecommencement of this Act adiation and the acceptance by the survivorof the benefits under the will shall have the effect of conferring upon the1 4 L. R. (Privy Council) (1871-1873) 236.
22
MAARTENSZ J.—de Silva v. de Alwis.
heirs entitled to the said property after the expiry of the said limitedinterest the same rights in respect of the survivor’s J share of such propertyas they may by law possess in respect of the i share which belonged to thespouse who has first died ”.
At common law the heir or legatee had merely a jus in personam[Steyn, p. 145). The defendants had therefore no jus in re in theproperty of Eugenie even though there was a massing of the joint estateand adiation by her.
“Massing is a joint disposition after the death of the survivor of themby two persons in a joint will of their property consolidated into one massfor the purpose of the joint disposition (Steyn, p. 127.)
“ The essential features of massing are (i.) a joint disposition by thespouses, and (ii.) a disposition taking effect on or after the death of thesurvivor. If these are present the survivor cannot, after adiation, revokethe mutual will, to the extent that it was massed. It will make nodifference, (i.) that some of the dispositions of the first-dying take effectupon his or her death, or (ii.) that the whole joint estate is not disposed ofprovided only that there is a joint disposition of some of the joint estateon or after the survivor’s death (Steyn, pp. 127 and 128.)
Eugenie and de Alwis by the joint will in question devised all theirimmovables to the survivor lor life with a prohibition against alienation,and directed that after the death of the survivor the immovable propertyshould devolve on their children absolutely as provided by the will.
I think this disposition of the immovable property of the spouses cannotin effect be distinguished from the first illustration given by Steyn onpage 128 of the massing of the whole joint estate. It is as follows :
‘ Testators bequeathed the usufruct of the joint estate to the survivorfor life and directed that after the death of the survivor the joint estate,after the deduction of certain legacies, should form a poor fund for thesupport of indigent relations ”.
I accordingly hold that there was a massing of the immovable propertyof the estates of the two persons who made the joint will.
As regards the adiation of the estate it was urged that the evidence didnot justify the District Judge’s finding that Eugenie accepted somebenefit under the will.
The properties left by the testator de Alwis were “ Rosendale ”,“ Carlwill ”, and three boutiques in St. John’s road. They were subjectto a life-interest in favour of the testator’s mother Lucia, who died onMarch 26, 1919. Eugenie stated that she continued to live in “ Carlwill ”after the death of her husband with her mother-in-law, and after hermother-in-law’s death till she married, and that she took the rents andprofits of “ Rosendale ”, and the three boutiques after the death of deAlwis. She maintained her mother-in-law till she died, and appropriatedthe balance for the maintenance of herself and heir children. She addedthat the receipts were issued by her mother-in-law. In re-examinationshe stated that she took the rent of “ Rosendale ”, after her mother-in-lawdied and before her second marriage. This evidence alone, if believed,establishes that Eugenie accepted benefits from her husband’s property.The District Judge has accepted her evidence, and found that she adiated
23
MAARTENSZ J.—de Silva v. de Alwis.
the inheritance and I see no reason to hold otherwise. Eugenie thereforewas not entitled to execute the deed of gift P 2 in derogation of the will,
I deferred dealing with the argument that the disposition of the contin-gent interest failed as the testator died before John Henry Fernando as itappeared to me that u massing ” and “ adiation ” had some bearing on it.If there was no massing of the property of the testator and testatrix heor she is deemed to have dealt with his or her own property. Wherethere is massing and adiation the first dying is deemed to have disposed,of the property of the survivor. If the will with which we are concernedwas one of the former class, the death of the testator would not affectEugenie’s devise to the children. Does the fact that there was a massingof the property belonging to each of the makers of the will make a differ-ence? I do not think it does; for even when there is massing andadiation when the first-dying dies the mutual will is read as his or herwill oiily and operates to pass dominium to the heirs of only that portionof the joint estate which is bequeathed to them by the first-dying, andalthough by adiating, the survivor is prevented from making a new willwith regard to the other £ contrary to the terms of the mutual will, andis bound by the terms of the mutual will with regard thereto, yet as hehas not died his portion of the mutual will has not yet spoken, andconsequently the heirs cannot be said to have acquired the dominium ofthat i of the joint estate (see the articles on “ Alienation by Survivor ”in leading cases on South African Law by Jones and Ingram, Part I.,p 101). This passage is equally applicable to a will made by personsnot married in community of property.
Eugenie’s portion of the mutual will therefore spoke from her death,that is, after the happening of the contingencies and the vesting ofBogahawatta in her. I am accordingly of opinion that the death of thetestator before John Henry Fernando did not affect Eugenie’s dispositionof her contingent interest in the property in dispute.
In the article I have referred to above it is laid down that a survivorwho has adiated under a mutual will where there has been massing cannotvalidly alienate by gift. The plaintiff therefore acquired no title to 1/16 ofBogahawatta under the deed of gift.
Eugenie had however a right to dispose of her life-interest in Bogaha-watta and the plaintiff would be entitled to judgment for a 1/16 share of theTents of the premises until her death, unless she was deprived of the lifeinterest on her second marriage by the forfeiture clause in. the will.
The forfeiture clause would, I have little doubt, have deprived Eugenieon her second marriage of her interest in the immovable property of thetestator. It was urged that she could not have intended to forfeit herinterest in her own property. Whether she did so intend or not dependson the terms of the clause.
The clause provides as follows (I re-state it for convenience of reference):“ It is our will and desire that if on the death of either of us the survivorshall marry again he or she shall thereupon forfeit all the life-interesthereby given to the survivor and such survivor so marrying again shallnot be entitled to the income of any of our immovable property and allour immovable property shall immediately devolve absolutely on ourchildren in manner above mentioned ”.
24
MAARTENSZ J.—de Silva v. de Alwis.
– It is expressed in the most comprehensive terms, and' is thereforeapplicable to the property of the survivor as well as to the property of thefirst-dying, and I am of opinion that Eugenie on her second marriageforfeited her interest in Bogahawatta, and that the plaintiff did notacquire even a life-interest under the deed of gift P 2.✓
The appellant finally contended that he and his predecessor in title hadbeen in adverse possession of the 1/16 share in dispute for over ten yearsbetween the date of Eugenie’s second marriage and the date of ouster andthat he had acquired a title by prescription to that share.
The date of ouster averred in the plaint is May 1, 1933. The date ofouster mentioned in issue 9 is May 1, 1934. The plaintiff states atpage 35 of the record, “ I accept -my Counsel’s position on the last datethat I claim rent from these defendants as from 1934 ”. The alteration^of the date reduces the rent recoverable by the plaintiff but it gives hima year more in which to acquire a title by prescription. For the purposesof prescription the plaintiff must be held to the date of ouster averred inthe plaint. He cannot therefore acquire a title by prescription againstthe third and fourth defendants who were- born on December 15, 1902,and February 10, 1909, respectively. The fourth defendant attainedmajority by her marriage in February, 1928.
The-'plaintiff apparently never had. possession himself as on June 11,1926, he executed a deed of lease No. 95 (P 3) of the 1/16 share in favour ofEugenie for a period of six years, commencing from June 1, 1926, and she,according to his'plaint (D4) in action No. 53,500 of the District Court ofColombo, continued in possession after the expiry of the lease.
There was only a period of 12 years and 5 months from the date ofthe forfeiture' (December 17, 1920), to the date of the ouster averred inthe plaint. The plaintiff to establish a title by prescription must provethat Eugenie, by paying him rent, possessed a 1/16 share of Bogahawattaon his behalf during the term of the lease.
The plaintiff’s plaint P 8 in action No. 38,640 against Eugenie for therecovery of 34 months rent up to and including the month of June show,on the contrary, that she at most paid him rent for 13 months fromJune 1, 1926 (erroneously referred to as July 1, 1926). She, in heranswer P 9, .denied paying him any rent or that he was entitled to anyrent at all, and his action was dismissed as a settlement was arrived at.The terms of the settlement have not been proved and it cannot be saidthat she admitted the claim. There was accordingly, on his own showingonly a period of 7 years from the date of the forfeiture to the date up towhich Eugenie paid the plaintiff rent, which is insufficient to establish atitle by prescription.
Moreover in 1927, 10 years had not elapsed since the first defendantand the second defendant, who were born on September 2, 1899, andJuly 21, 1901, respectively, had attained their majority:
The plaintiff’s claim to have acquired a title to a 1/16 share by prescrip-tion also fails. I accordingly dismiss the appeal with costs.
Abrahams C.J.—I agree.
Poyser S.'P.J.—I agree.
Appeal dismissed.