MARY NONA et al., Appellants, and EDWARD DE SILVA, Respondent

018-NLR-NLR-V-50-MARY-NONA-et-al.-Appellants-and-EDWARD-DE-SILVA-Respondent.pdf


Jdary Nona v. Edward do Silva.
73
1948 Present: Wijeyewardene A.C.J., Jayetileke S.P.J. and Windham J.MARY NONA et al., Appellants, and EDWARD DE SILVA,
Respondent
/S. C. 88—D. C. Kandy, 408 Testy.
Last will—-Joint will by husband and wife—No massing of property—Death ofhusband—Remarriage of wife—Revocation of her will—Prevention, ofFrauds Ordinance, section 6.
Where there is no massing a joint will must he read as separate willsof the testators and after the death of one testator the right of revocationremains to the other. A will may be revoked by the second marriageof the testator subsequent to the execution of the will.
In re the Estate of R. V. Johannes JMnppu (1879) 2 S.C.O- 14 not followed.
Appeal from a judgment of the District Judge, Kandy.
H. W. Jayewardane, with S. Wijesinha, for the 9th, 10th, 11th respon-dents, appellants.—The joint will PI was made by one Charles de Silva andone Elizabeth, husband and wife, in the year 1921. By clause A bothmovable and immovable property belonging to both husband and wifewere given and devised to Margaret, a daughter of Charles by a previousmarriage. Clause B went on to state that if Charles was the survivorCharles would be entitled absolutely to all the property belonging to thejoint estate, and that if Elizabeth was the survivor Elizabeth would beentitled to the control of all the property and to enjoy the rents and profitsthereof but that Elizabeth wotdd not be at liberty to sell or dispose ofthat property. By clauses C and D certain sums of money were disposedof for certain purposes. Charles died in 1922 and after Charles’ deathElizabeth contracted a marriage with one Warakaulle who died in 1938leaving Elizabeth considerable property. Elizabeth died in 1943 andat her death was possessed of a considerable amount of property, agood portion of which she had acquired after the death of Charles.
The issue that has to be decided in this case is whether the propertyacquired by Elizabeth subsequent to the death of Charles in 1942 passedunder the joint will PI of 1921 or whether these appellants are entitledto such property.
If on the interpretation of the will there has been massing for thepurpose of the joint disposition, the property massed can be only theproperty which belonged to the testators at the time the joint will wasmade or, in any event, property which belonged to them at the time ofthe death of the first dying, that is, of Charles in 1922. The joint willPI therefore operated only in respect of the joint estate of both the testatorsand, therefore, property acquired by Elizabeth after the death ofCharles was not dealt with under PI. See D&nyssen v. Mostert1; Meiring’sExecutors Dative v. Meiring’s Executors Testamentary2; Weerasinghe
1 (1871—3) 4 P. C. Appeals 236 at 254.* (1877) 7 Ruchanan 93 at 95.
4—I*.
A 83745-1,044 m/48)
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WIJEYEWARDENE A.C.J.—Mary Nona v. Edward de Silva.
et al. v. Majapakse et al? ; De Silva v. De Alwis 1 2 ; Fan Eyrev. The PublicTrustee3 ; Sangatamorthy v. Candappa et alA ; Ex parte Estate WiUemse5.See also Nathan's Common Law of South Africa pp. 1844 and 1846.
Massing is a joint disposition after the death of the survivor of themby two persons in a joint will of their property consolidated into onemass for the purpose of the joint disposition. See Steyn on Law ofWills, p. 127. The clause B negatives the essential condition that thedisposition should be on the death of the survivor because, if Charles isthe survivor, he takes all the property absolutely on the death ofElizabeth. Further, there is a strong presumption against massinggenerally and where possible that construction must be preferred wherebythe will is regarded as the will of the first dying alone. See Steynpp. 137 and 138.
H. V. Perera, K.C., with E. G. Wikramanayake, Kingsley Herat and
T.B. Dissanayake, for the petitioner, respondent.—On the questionwhether there was massing or not, clearly there has been massing for thepurpose of the joint disposition in the case of this joint will PI. Thedefinition of massing is found in Chapter XI of Steyn’s Law of Wills,p. 127. The essentials of massing according to the definition are (1)joint disposition of property, and (2) to take effect after the death of thesurvivor. Clause A of PI contains both these requisites. “ All ourproperty, both movable and immovable, wherever found or situate ” iswide enough to cover all property owned by Elizabeth at the time of herdeath, and the disposition to Margaret is clearly on the death of thesurvivor.
Giving the power of alienation to the survivor does not negativemassing or render nugatory the earlier disposition. There is nothingwrong in conditional massing or in the power of alienation given to thesurvivor by the will. The will will operate subject to the conditionimposed and, with respect to whatever is left after the survivor hasexercised his power of alienation, on the death of the survivor. SeeSteyn, p. 142 and p. 238.
On the question whether remarriage of Elizabeth revoked the will,that question has not been raised in the form of an issue in the lowerCourt. There is, however, distinct authority of this Court that section6 of Prevention of Frauds Ordinance does not have the effect of revok-ing the will of a person who was married at the time of making thewill. Provisions of that section apply only to persons who were un-married at the time of making the will. The wording of that sectionfavours and justifies that interpretation. See In the Matter of the Estateof K. D. Johannes Muppu 6. Counsel also cited Steyn, p. 194 and Voet
August 6, 1948. Wijeybwabdbnb A.C.J.—
This appeal comes before us on a reference made by Bias and BasnayakeJJ. under section 775 of the Civil Procedure Code.
7.1.10.
Cur. ado. vult.
1(1913) 16 N. L. R. 356.
2(1937) 40 N. L. R. 7 at 22.
* (1944) 46 H. L. R. 59.
(1932) 33 N. L. R. 361 at 372.* S. A. L.R. (1946) CP.D. 897.8 (1879) 2 S. C. Circular 14,
WTJEYEWABDE2JE A.C.J.—Mary Nona v. Edward de Silva.
75
One Charles de Silva, a widower, married Elizabeth after 1877. Charleshad a daughter Margaret by a previous marriage. Charles and Elizabethexecuted a last will PI in 1921. Charles died in 1922 leaving his widow,Elizabeth, and his daughter, Margaret. The last will PI was dulyproved and probate was issued to Elizabeth. After the death of Charles,Elizabeth acquired certain properties. Elizabeth contracted a secondmarriage with one Warakaulle, who died in 1938 leaving a last will.Elizabeth who had no children by either marriage died in 1943. Theninth, tenth, eleventh respondents-appellants and some others claimto be cousins of Elizabeth and her intestate heirs. Margaret died in 1944,leaving as her heirs her children, the first, second, third, fourth and fifthrespondents. The petitioner applied to have PI proved in respect ofthe estate of Elizabeth.
The question that has to be decided on this appeal is whether theproperty acquired by Elizabeth after the death of Charles pass underthe last will PI to the first, second third, fourth and fifth respondentsor devolve on her intestate heirs.
The relevant clauses in the will read as follows :—
Clause A.—“ We give and devise all our property both movable andimmovable wherever found or situate to our daughter Pandita-ratnagamage Dona Margaret de Silva.”
Clause B.—“ We hereby declare that in case I the said Panditaratna-gamage Don Charles de Silva shall be the survivor I shall beabsolutely entitled to all the residue and remaining property,movable as well as immovable belonging to our joint estate,and that in case I the said Kirinde Layana Aratehige DonaElizabeth de Silva shall be the survivor I shall be entitled tokeep all the said residue and remaining property under mycontrol and to enjoy the rents and profits thereof, but I shallnot be at liberty to sell, mortgage or otherwise dispose of thesame.”
Clause C.—We give and bequeath a sum of Three Thousand Rupees(Rs. 3,000) to be spent at the discretion of the executors towardsthe improvement and spread of Buddhist Education in theIsland.”
Clause D.—“ We also give and bequeath a sum of One ThousandRupees (Rs. 1,000) to the Buddhist Society of Great Britainand Ireland towards the spread of the Dhamma in England andother European countries.” I
I have referred to clauses C and D as they help to interpret what thetestator and testatrix meant when they referred to the “ residue andremaining property ” in clause B. It is conceded by both parties thatby “ residue and remaining property ” the testator and testatrix intendedto refer to what was left out of the property governed by the last willafter the payment of the two legacies of Rs. 3,000 and Rs. 1,000. Thetwo clauses that have to be examined carefully for the purpose of decidingthis appeal are clauses A and B.
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WIJRYEW ARDEN E A.C.J.—Mary Nona v. Edward de Silva.
If the last will stopped at clause A and did not include clause B, theproperty of Elizabeth acquired after the death of Charles would havepassed to the first, second, third, fourth and fifth respondents. I amnot considering at this stage the effect of the second marriage of Elizabeth.Does the clause B nullify the effect of clause A ? It is contended that thewords “ joint estate ” in clause B restrict the operation of the last will tothe properties that Charles and Elizabeth had at the time of the executionof PI, or, in the alternative, to the properties of Charles and Elizabethat the death of Charles. Certain local cases and decisions of the SouthAfrican Courts were cited to us in support of that contention. In allthose cases the spouses who made the last will were married in communityof property. The words “ joint estate ” or “ common estate ” used bysuch spouses would, in the absence of any evidence to the contrary,mean the property which became “ joint ” or “ common ” by reason ofthe marriage in community of property. In such cases there must bestrong reason for bringing into the “ joint estate ” or “ common estate ”property acquired after the death of the first dying spouse, as suchproperty would not generally fall into community. But, in the presentcase the position is different. There was really no “ joint estate ”between these two spouses who were not married in community. The“ joint estate ” came into existence as a result of the last will. I thinkthe words “ joint estate ” were used in PI for the sake of convenienceof reference to denote the property mentioned in clause A. In thosecircumstances clause B has not restricted the scope of clause A as suggestedby the Counsel for the appellants.
As Elizabeth has taken certain benefits under the last will, it wouldhave become irrevocable if it had effected a “ massing ” of the estatesof Charles and Elizabeth.
“ Massing ” is a joint disposition after the death of the survivor of themby two persons in a joint will of their property consolidated into onemass for the purpose of the joint disposition (Sfceyn on Wills, p. 127).Now, in the present case, if Elizabeth died first, the surviving husbandCharles, would have been “ absolutely entitled to all the residue andremaining property ”. I am unable to hold that, in spite of this pro-vision, the last will PI discloses an intention on the part of the two spousesto make a joint disposition of their “ joint estate ” after the death ofthe survivor. “ There is .a strong presumption against massing, andwhere possible that construction must be preferred whereby the will isregarded as that of the first dying alone and as containing the separatewills of each of the spouses wherein their individual shares of the communityare disposed of.” (Steyn on Wills, p. 137).
In the absence of :t massing ” the interpretation most favourable tothe first to fifth respondents is that PI contains separate wills. Elizabethwould have had the right to revoke her last will after the death of Charles.The second marriage she contracted would have, therefore, resulted inrevoking her last will contained in PI (Prevention of Frauds Ordinance,section 6). It was contended by Mr. H. V. Perera that section 6 of thePrevention of Frauds Ordinance did not have the effect of invalidatinga will of a married person by reason of a second marriage subsequent tothe execution of the will, and he relied on the opinion expressed by
CANEKER.ATNE J.—The King v. Onanapiragasam.
77'
Stewart J. in Re the estate of K. D. Johannes Muppu (1879) 2 Supreme'Court Circular 14. That opinion was an obiter dictum, as it was notnecessary for Stewart J. to consider section 6 in view of the definitedecision reached by him that the last will in that case had becomeirrevocable, since the testator and testatrix there had massed theirestates and the surviving testator had adiated the inheritance. Withdue respect to the learned Judge, I find myself compelled to disagreewith the view expressed by him as to the scope of section 6. I wouldanswer the issue raised in this case in favour of the appellants.
The appellants are entitled to the costs here and in the District Court.
Jayettleke S.P.J.—I agree.
Windham: J.—I agree.
Appeal allowed-