014-NLR-NLR-V-07-ANTHONISZ-v.-BARTON.pdf
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IMS.May 22.
Last will—Admissibility of toill tn evidence for want of registration—Ordinance
No. 6 of 1866, s. 2—Creation of valid fidei commissum—Words of pro-hibition against alienation—Occupation of house by agreement between
heirs subject to tenor of will—Prescriptive possession.
A last will is not a " deed *' which is required to be registered underthe Ordinance No. 6 of 1866, section 3.
The probate of a will produced at a trial to prove the existence andterms of the will does not come within the description given by section3 of the Ordinance.
No set form of words is necessary for creating a fidei commissum. Pro-hibition of alienation out of' the family coupled with a dear indication ofthe person to whom the property, in the event of alienation, is to go over,constitutes a good fidei commissum without formal words.
Where a will made by W appointed certain persons heirs of ” my estate,provided always that they and their descendants shall not have the powerof mortgaging or alienating the land and property,” and directed that” in case any of the heirs or their descendants depart this life withoutissue, his or her share shall go to the surviving heirs of my body.
Held, that this was a devise not only to the nominated heirs of W butalso to their descendants.
One of the nominated heirs of W left a daughter U, who married S B.
In 18S6 a house was given by the executors of W to S B to be possessedas the share of his wife, subject to the tenor and meaning of W'slast will. S B possessed the house exclusively during his life, and diedin 1860 leaving a last will which devised the house to his son H, whocontinued in exclusive possession till his death in 1894, leaving the houseby will to his wife, the defendant, who held – exclusive possession alsoat the time the present action was brought.
The children of J U, one of the nominated heirs of the originaltestator W, raised an action ret vindicatio against .H’s widow in 1901,claiming that upon the death of S B the house passed to them and thesurviving descendants of the only other of W’s nominated heirs.
Held, that S B was bound by the fidei commissum created by W; thatupon the death of H the hopse possessed by them passed to the plain-tiffs and the other existing descendants of the nominated heirs; thatthe possession of S B in right of his wife could not prescribe againsther or his heirs; that S B's possession and that of his son ’ H were notadverse to the title of the plaintiffs; and that tye defendant’s ^ownpossession, though advene, was just short qf ten yearo when the actionwas brought.,,,
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N this case the plaintiffs sought to vindicate an undivided halfshare of a house iA the Fort of Galle. Their claim was based
upon the last wil‘ of «one Mr. Wettensleger dated 28th May,
1830, whereby the test itor, after making a devise in favour of his
ANTHONISZ v. BABTON.D. C., Galle, 6,333.
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1003. son Ursinus, bequeathed the residuary estate, including the houseMay 22. in question, in the manner set forth in the following provision :•—
“ I do hereby nominate, constitute, and appoint Johanna Maria,Johannes Euzibius, Margaretta Dorothea, Sara Lovia, and JanUrsinus Wettensleger heirs of my estate, possessing and enjoying’the same share and share alike, provided always and my will anddesire is that they nor their descendants shall have the power ofmortgaging, selling, or otherwise alienating the landed property orthe houses and buildings constructed thereon which I may diepossessed of, and that the same shall not be subject to their debts.
" Further, I will and desire that in case any of the heirs or theirdescendants shall happen to depart this life without issue, his orher share shall go to the surviving heirs of my body male orfemale or their lawful descendants."
Johanna Maria died in 1830 leaving a daughter Ursina, whomarried Samuel Barton. They died leaving a son James, whodied without issue in 1894 leaving him surviving his wife, thedefendant.
Johannes Euzibius left two children, who also died, withoutissue.
Margaretta Dorothea and Jan Ursinus left descendants, and -heplaintiffs were the heirs of M. Dorothea.
Sara Lovia left two children, who also died without issue..
In 1836 the house was given by the executors of Wettenslegerto Samuel Barton according to an agreement entered into betweenthe heirs of the estate, and since that time he and his son Jameshad been in possession successively, and after them the defendant.
It was contended for the. plaintiffs that on. the death of JamesBarton in 1894 a moiety of the house vested in them in terms ofthe will.
The defendant argued that no valid, fidei commissum wascreated by the will.
The District Judge held that, when James Barton died withoutissue to take possession of the property under the family arrange-ment, the descendants of Margaretta Dorothea and Jan ‘Ursinussucceeded to the same as the only heirs then living of Witten-sleger’s tbody. Therefore he" decreed that- the plaintiffs wereentifted to an undivided ha^f share of the house. .
« The defendant, who was the widow of James Barton, appealed.
DoTnhoT8t, K.C., * Sampayo, K.C., and Van Langenberg, fordefendant, appellant.
Bawa and Schneider, for plaintiff, respondent.
Cur. adv. wit-
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22nd May, 1903. La yard, C.J.—
In this case it is contended on behalf of the appellant-defendantthat judgment should he entered in her favour on the followinggrounds: —
That the will of Jan Martin Wettensleger dated 28th May,1830. is not admissible in evidence.
That the will contained no valid fidei committum and noprohibition against alienation by will.
That Samuel Barton, who it is alleged, devised the propertyto the deceased husband of the defendant, was not bound by thefidei commissum, if any, and therefore his son and his son’s widoware not affected thereby.
It will be well first to dispose of the preliminary point as to theadmissibility of the will in evidence.
I do not think a will is within the Ordinance No. 6 of 1866.
That Ordinance is to compel the registration of deeds and otherinstruments of title with a view to prevent false ones being set up.
Now, first wills are nowhere expressed to be instruments withinthis Odinance.
While specifically naming various instruments the Ordinanceomits the mention of wills.
A will is clearly not a deed, as lawyers understand it.
For instance, powers of appointment by will are not exercisableby deed, or vice verad; and, further, when one looks at the purposeof the Ordinance ijb does not seem that it was intended .to includewills among instruments of title.
The object of registration is to prevent setting up forgedinstruments of title bearing old dates. Without registration thismight be easily done in the case of deeds, but in the case of falsewills of old dates there would be the fact that no probate had beenapplied for; and that would be a sufficient protection againstforging instruments of this class of old dates, because, if a manbrings a very old will into Court and sets it up, and 'it is shownthat no. one has ever applied for probate of it, it is hardly likelyto be credited by the Court. Further, the earlier. Ordinance No. 7of 1840, which deals with the ejjscution of deeds and wills,expressly distinguishes deeds from wills and codibils (see*sections2, 3, and'14). Bonser, C.J. (2 N.L.R.24b), in the passage cited by^appellant’s counsel, does not say that a will is ji deed; he says thata deed is an attested writing, not that all attested writings are deeds.
But it is not necessary to labour this point, because the contentsof the will, so far a., they bear on this case, tare admitted, and it isonly the construction t) at is in dispute.
1908.May 22.
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1903. Next, as to the contention that there was no valid fidei commieeum,Jfqgr 92. x agree with the District Judge in thinking it untenable.
Layabd, c. J.
The words reciting it are faulty grammar, but no other meaningcan be given to them than that they prohibit the heirs and theirdescendants from alienating.
No set form of words is necessary for creating a fidei commie-sum. Prohibition of alienation out of the family, coupled witha clear indication of the persons to whom the property in theevent of alienation is to go over, constitutes a good fidei commieeumwithout formal words. (Vanderlinden, 2nd Edition, p. 62; Kotx’eVan Leeuwen, vol. 1., p. 376; 2 Burge, 106 ) We have therefore theessentials of a valid fidei commieeum (Vansanden v. Mach, 1 E.L.B.311). I further agree with the District Judge that the point thatdevise by last will was not an alienation within the meaning of theprohibition amounts to nothing, for the will proceeds to say that“ if any heir shall happen to depart this life ”—it does not sayintestate—“ his or her share shall go to' the surviving heirs,” &c.Again, I take it to be clear that on the death of Johanna Mariaher issue Ursina Arnoldina stepped into her shoes, and the otherheirs got nothing by jus accreecendi, as -that only was to arisewhere there was death without issue.
Samuel’s possession was therefore in right of his wife, and inmy view it was not material to cite the documents P 2 and P 3,for a man cannot by possessing in right of his wife prescribeagainst her or her heirs, – and therefore the admission of thesedocuments, supposing it to have been wrong, is not a ground forreversing the judgment, because, apart from the documents,there was no room for the contention that Samuel Barton was anadverse possessor. In respect of the contention that, even if theBartons, Samuel and James, were bound by the fidei commieeumwith regard to property received in the direct line from thetestator, they are not similarly restricted as regards the interestthat accrued to one another from death of the two institutedheirs, who left no issue (in support of which counsel citedVoet, 36, 1, 27; and Burge, vol. II., p; 114), it is plain from the judg-ment of .the Privy Council in Tillekeratne v. Ab eyes eh era (2N. I±. Ri 313) thtyt no person dan become absolutely entitled to-anyproperty burdened with a fidei commieeum so long as there existsdither instituted or substituted heirs under the will; and hereSamuel Barton had ‘never any right under the will other than ashusband of Ursina, and James inherited as-fidei commiseariue, beingthe issue of Ursina, herself the issue of the testator, and whenJames died childless thtere were alive the plaintiffs, issue of some ofthe instituted heirs and therefore heirs by the trms of the will,
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and as “ lawful descendants ” of the instituted heir, Jan Ursinus,the plaintiffs were entitled to succeed by substitution on JamesBarton’s death. I would dismiss the appeal with costs.
Wendt. J.—
We have in this case to construe the will, dated 28th May,1880, of the Rev. Jan Martin Wettensleger, proponent of theDutch Protestant Church at Galle. This will, after makinga bequest to the church and devising to the testator’s son JanUrsinus a certain house, contained the following as the third andfourth clauses: —
“ 3. And I do hereby nominate, constitute, and appoint JohannaMaria, Johannes Euzibius, Margaretta Dorothea, Sara Lovia, andJan Ursinus Wettensleger heirs of my estate, possessing andenjoying the same share and share alike, provided always and mywill and desire is that they nor their descendants shall have thepower of mortgaging, selling, or otherwise alienating the landedproperty or the houses and buildings constructed thereon whichI may die possessed of, and that the same shall not be subject totheir debts.
“ 4. Further, I will and desire that in case any of the said heirsor their descendants shall happen to depart this life without issue,his or her share shall go to the surviving heirs of my bodymale or female or their lawful descendants”
The property in question in this action is a house in the Fortof Galle which was not specifically mentioned in the will, butpassed to the heirs under the third clause.
The persons nominated as heirs were the children of thetestator, and they all survived his death, which took place on 6thOctober, 1835, with the exception of Johanna Maria (who haddied in February, 1830, survived by an only child Ursina, thewife of Samuel Barton) and Margaretta Dorothea, who had diedin 1834 leaving issue as hereinafter mentioned. Probate wasgranted to the executors named in the will, viz., Johannes
Euzibius and Jan Ursinus, and one Pieter Carolus Jansz.
»
On l7th October, 1836, a memorandum in writing was signed byJohannes and Jan Wettensleger, Samuel Barton, P. C. Jansz (thehusband of Margaretta Dorothea), tind H. W. Kemps, thp husbandof Sara Lovia. It recited that these signatories “•had come io thefollowing decided conclusion and settlement how and in whatmanner to be divided the immovable property belonging to theestate of the deceased,,’’ and recorded* that the brothers Wetten-sleger were to receive for their share the gardens called Leeuw’sRust and part of the garden Zargand Hoop; Jansz and Kemps to
1903.
May 22.
Layabd, O.J.
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1903.
May 22.
Wendt, J.
receive the garden Endraght, and Samuel Barton to receive lorhis share, among other property, the house in question; “ how-ever subject _ to the tenor and meaning of the last will andtestament of the testator afoersaid, and we are liable to payindividually every one their respective share to compute andliquidate all such debt as the estate may be indebted.”
On 16th November, 1836, Samuel Barton, by a notarial deed,acknowledged to have received from the executors “ in landedproperty to the value of £150 sterling, which appears more fullyby the notarial act or declaratory this day executed in myfavour, which said premises are subjected to the conditions andmeanings of the said last will and testament as follows:provided always ” [the words of the will were then quoteddown to the words “ heirs of my body male or female or theirlawful descendants ”]. The deed described the property receivedas being ” the share competent to my wife, who is the grand-daughter of the said testator.” The “ notarial act or declaratory ”mentioned in this deed was not produced at the trial, but it isreasonable to infer that it comprised the property enumeratedin the memorandum already mentioned.
Samuel Barton exclusively possessed the house in questionduring his life (the date of his wife Ursina’s death is not ascer-tained) and died in 1860, leaving a last will, which, after giving acouple of pecuniary legacies, devised the residue of his propertyto his only son, Henry, James Barton, who similarly was inexclusive possession of the property till his death without issuein 1894. He left a last will devising all his estate to his wife, thedefendant, who has ever since been in possession. It is admittedthat the Bartons, father and son, and the defendant never paid rentfor the house in which they in succession resided continuouslyfrom the year 1837.
Johannes Euzibius died in 1858, leaving two children whothereafter (date unascertained) died without issue. Similarlythe two children of Sara Lovia, who died in 1857, died withoutissue (date unascertained). Margaretta Dorothea, who died in1834, left four children, now dead, each of whom has decendantsnow alive, but not parties to the action. The plaintiffs are thefour ^ children of (Tan Ursinus/ who died in October, 1891. ' Theybrought the present action, in August, 1901, and in it ttjey claimthat the will of their * grandfather created a fidei commissum infavour of the testator’s descendants, and that upon the deathof Henry James Barton the house in question passed in equalshares to them and the surviving descendants of MargarettaDorothea, as being tfye respective descendants of the only two
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of the testator’s nominated heirs who were represented by 1908.descendants then living. The learned Acting District Judge has May 22.decided in their favour, and the defendant has appealed.Wendt, «T.
The appellant first argued that the will of 1830 was not admissiblein evidence, because it was not registered in manner required byOrdinance No. .6 of 1866. I fail to see what advantage the rejectionof the will as a piece of documentary evidence would be to theappellant, as its contents so far as they bear upon the case have beenset out in the plaint and admitted in the answer. But I am ofopinion that the probate of a will produced at a trial to prove theexistence and terms of the will does not come within thedescription given by section 2 of the Ordinance of “ deeds,sannases, olas, and other instruments on which title to land orother immovable property is founded.” It certainly is not withinthe mischief of the Ordinance, which was aimed against “ falsedeeds, sannases, and olas purporting to bear old dates.” The factthat the will was produced and filed in Court and duly proved, andhits ever since remained there filed, is at least as good a guaranteeagainst fraud as the production of it to a registrar under theOrdinance. Further, the will, being filed in Court, could not havebeen produced to the Begistrar by any of the plaintiffs or anypredecessor in title of theirs, and its non-registration was thereforedue to a cause “ utterly beyond their control ” within the meaningof section 7.
The main contention of the appellant, however, was that thewill did not create a valid fidei commussum. It was said that thedevise was to the nominated heirs only, and that there was nodevise to their descendants. But the third clause is somethingmore than a devise of residuary estate under the English Law.
It- is an appointment of the persons named to be heirs of thetestator, and I think it is impossible to read the 3rd and 4th clausesof the will without being convinced that the testator intended thathis immovable property should after the death of his children passto their descendants; for he forbids the children to mortgage, sell,or otherwise alienate the property, in order to ensure its passingto their descendants, and *he contemplates the event of suchdescendants receiving the properly, for he extends the prohibitionto them as well.
No special form of words is necessary to create a fideicommissum, but effect is given to a fidei commissum if it can becollected from any expressions in the iastrument. that it was thetestator’s intention to create it. (Juta’s Vanderlinden, 2nd Edition,p. 62; Kotze’8 Van Leouwen, vol. I., jp. 376; 2 Burge, 106.) The
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1003.very prohibition to alienate suggests a fidei commissum, and it is
May 22. clear that the persons in whose favour the prohibition was madeWundt, J. were the descendants of the testator. Even without the indication,the mere prohibition imposed upon the heir is in certain casesdeemed to have created a fidei commissum in favour of thetestator’s nearest relations. (Van Leeuwen, loc. cit.) The case ofVansanden v. Mack (1 N. L. R. 311), the authority of which thereis no reason whatever to doubt, fully supports the opinion of theDistrict Judge, who relies upon it. There the testatrix firstdeclared that a certain house should not be sold or alienated, butbe possessed by her children and their descendants, and then,proceeding to the institution of heirs, she appointed her childrenheirs to all her property equally to be divided and possessedamongst them; and it was held that a valid fidei commissum wascreated in favour of the descendants of the testatrix.
I am therefore of opinion that the will of Jan Martin Wetten-sleger created a valid fidei commissum.
The next point for consideration is the appellant’s contentionthat, even granting that the Bartons were bound by the fideicommissum in respect of what they received in the direct linefrom the testator, they were not similarly restricted as regardsthe interests that accrued to one or the other of them from thedescendants of the two instituted heirs whose children left noissue. For this contention Voet (36, 1, 27) was cited, with theopinion of- Burge, vol., II., p. 114s. But on this point we have theauthority of the Privy Council decision in Tillekeratne v. Abeye-sekere (66 L. J. P. G. 56, 2 N. L. R. 313). The will in question therecreated a fidei commissum of a moiety of the testator’s wholeestate in favour of three grandchildren and their descendants.
One of these three instituted heirs, John Paules, left an onlydaughter, who after her title vested died- without issue and intes-tate. It was claimed by the daughter’s administrator that theline of John Paules having become extinct in the person of hisdaughter, her share was unaffected by any substitution and there-fore belonged to her in fee. Theig Lordships were of opinionthat this would, be so if there had been three fidei c'ommissa,each of one-third of the moiety, instead of one fidei commissumof tthe «.whole moiety. The latter being the case, it was' decidedthat the daughter’s heiro-at-law, not being in the direct line ofdescent from the testators, could have no right of succession toher “ so long as &ny pqrson was in existence who could show atitle either as an institute or as a substitute under the provisionsof the will.” It was in fact considered, that there was a cross-substitution of descendants, so’ that if at any time there existed
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descendants of one of. the grandchildren only, they would takethe whole of the property. In this respect, the words of thewill we are construing are much stronger than those of the willin TMekeratne v. Abeyesekere. The fourth clause provides thaton failure of any of the institutes or their descendants, hia or hershare shall go to the surviving institutes or their descendants, theintention being to keep the properly in the line of the testator’sdescendants. There exists, therefore, in this case what Voetmentions at the end of the cited section 27 as a qualification ofthe principle upon which the appellants rely, viz., that the inten-tion of the testator was otherwise. (See a useful note of thissection in Mr. McGregor’s excellent translation.)
It follows that upon the death of Henry James Barton the sharein the estate possessed by him passed to the existing descendantsof the other instituted heirs, who, I suppose, would take per stirpes,plaintiffs thus getting the half which they claim.
t follows that upon .the death of Henry James Baron the sharepossession since 1837 was an adverse possession, undisturbed anduninterrupted for over thirty years, which, under section 14 of theOrdinance No. 22 of 1871, was conclusive proof of the defendant’stitle. But it is impossible to read the instruments executed bySamuel Barton in 1835 and 1836, before his possession began,without being convinced that he had then no intention of dis-puting the jidei commissum, and nothing that he did thereafterevinces or even suggests such an intention. True, he exclusivelypossessed the house in question and paid no rent for it, but thatmuch he was entitled to do under the fidei commissum while hiswife lived, and his possession thereafter may properly be attri-buted to the title of his son. He never attempted to alienate theproperty, and did not even mention it in his will. And so withHenry James Barton. The division in 1835 was purely forconvenience of possession only. It would only bind the heirswho were parties to it, and so long as Samuel Barton and hisdescendants lived—their share being in no wise diminished, hutrather increased by the failure of the other two lines of descendants—there would be no reasoiJ for disturbing the arrangement. It isonly defendant’s own possession, which was certainly adverse tothose entitled under the jidei commissum, which can avail her, butthat possession was just short of ten years’ duration frher> thisaction was brought.’
» *
It was urged that prescription ought to avail defendant even inrespect of such shares as plaintiff’s father acquired from his brotherand sister, whose issue failed. Perhaps it would have availed herif plaintiff’s father were the plaintiff "in this action—to the extent
1903.
May 22.
Wendt, 3.
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1903.
May 22.
Wkitdt, J.
of entitling defendant to possess plaintiff’s father’s share duringthe latter’s life. But the moment he died plaintiff’s rights accruedunder the fidei cotnmissum, and defendant’s adverse possession-must begin afresh. It is perhaps unnecessary to point out thatthe proviso to section 14, on which defendant relies, deals with thedisability of a person entitled to possession, not with the case ofa person whose right to possession has not yet accrued. The caseof the latter is dealt with in the proviso to section 3, which protects,the plaintiffs.
I think the judgment of the learned Acting District Judgeshould be affirmed.
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