130-NLR-NLR-V-17-CARRON-v.-MANUEL-et-al.pdf
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Present: LasceUes C.J. and Pereira J.
CARBON v. MANUEL et al.
4,70—D. G. ChOaw, 4,702.
Joint will—Bequest of property to . three persons subject to a fidei
commissure—Death of one fiduciarius—Jos accrescendi.
By a joint will the testators bequeathed one-half to Lucia, Ana,and Maria, and one-half to Phillippa and Helena. After theirdeath '* the said shares ” were to devolve “ on their lairful issuewithout any restriction whatever."
Held, that on the death of Maria without issue her sharedevolved on her husband (to whom Maria had left it by last will),and did not accrue to Lucia and Ana.
Lasoklles G.J.—The intention, I think, is pretty clear, that theshare of each of the three sisters should be regarded as a separateinterest subject to a separate fidei commissum, and that it shoulddevolve “ on the lawful issue " of the respective institutes " with
out any restriction whatever " It has been held in South
Africa that when once the fiduciary heirs have entered upon theirrespective shares of inheritance a separation of interests has takenplace, which prevents the operation of the jus accrescendi in favourof the survivor.
T
HIS was a partition action where the matter lor determination: was the construction to be placed on the joint will of Simon
Moraes and his wife, which had been considered by the SupremeCourt in Perera v. Silva et al.1
J. de Saram (with him Samarawickrema) for ninth, tenth,eleventh, and sixteenth defendants, appellants.—The decision in caseNo. 4,708, D. C. Chilaw, is not res judicata, as that case was notbetween the same parties.
There is only one fidei commissum created by the will. OnMans’s death her share would go to the other sisters by virtue ofthe rule of jus accrescendi. (TiUekeratne v. Abeysekera,2 Vansanden
v. Mack,* TiUekeratne v. Silva.*)
1 (1913) 16 N. L. S. 474.
* (1897) 2 N. L. R. 313.
1914.
» {1907) 10 N.L. R. 214.*{1896) 1 N. L. R. 311.
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191*.
Oarron ®.Manuel
Bawa, K.G. (with him Oanekeratne), for the fifteenth defendant,respondent.—The intention of the will was to create three distinctfidei commissa.
The fidueiarii have .entered on the inheritance. Once the fidueiariienter on the inheritiance there is a separation of the interests, andthere is no jus accrescendi after that. See Nathan, vol. III., p. 1897 ;Morice’a English and Roman-Dutch Law 304t.
Cur. adv. vult.
July 24, 1914. Lascelles C.J.—
The matter now in dispute is the one-sixth undivided share towhich Maria became entitled under the joint will of her father andmotheir. Maria survived her parents and died childless, havingdevised her one-sixth share to her husband, the fifteenth defendant-respondent.
The question is whether this devise holds good, or whetherMaria’s one-sixth devolved jure accrescendi on the appellants, whoare the children of Maria’s sister Lucia. The precise question nowat issue was decided in favour of the respondent by this Court inPerera v. Silva et al.,1 which was a partition action with regardto another property, the right to which depended on the constructionof the same will.
At the trial in the District Court the question arose whether theappellants were bound by that decision. The appellants contendedthat they were not so bound, because the land to be partitioned isnot the same as that in question in the other action, because theywere not parties to that case in the capacity in which they are nowsued, and because the defendant-respondent, though a party, wa6a party in a different capacity. The learned District Judge over-ruled these objections, and decided the present case on the footingthat it is res judicata.
Oh appeal, it was not contended that the reasons given by theDistrict Judge could be supported. But this is not very material.The judgment of this Court was a ruling on the construction of thewill on which the rights of the parties in this case depend; and thelearned District Judge would naturally, and properly, have followedthe ruling of the Supreme Court in that case quite apart from anyquestion of res judicata.
The position, now that the case has come before us in appeal, isas follows.
The previous ruling of the Court, being a decision of two Judges, isbinding on this Court as now constituted, but it would be open to-us, if we disagreed with the judgment or considered it open toquestion, to reserve the appeal for consideration by a Bench, of morethan two Judges.
»(1913) 16 N. L. R. 474.
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After hearing the matter fully argued, I have come to the conclu-sion that the previous judgment of this Court is right. In thetechnical language of the Roman-Dutch law the three institutes(Lucia, Ana, and Maria) must be taken as joined re et verbis, inasmuchas they are joined together in the will both by the language of thedevise and with regard to the property devised. It is true that thefact that the institutes are connected in this manner generally givesrise to a presumption in favour of the jus acerescendi, but it hasbeen held in South Africa that this presumption is not conclusive,and that it must yield to the testator's intention as declared in thewill. (Nathan’s Common Law of Samth Africa, vol. III., s. 1876.)
The words in the will, “ and after their death the said shares shalldevolve on their lawful issue without any restriction whatsoever,”must, I think, mean that the shares allotted to the institutes shalldevolve on their respective lawful issue. They cannot refer to thehalf shares (which are the only shares previously mentioned) intowhich the property was divided for the purpose of partition betweenthe sisters of Simon on the one hand and the sisters of his wife onthe other hand.
I think that the language used is inconsistent with the view thatthe intention of the joint testators was that the half share assignedto Justina’s three sisters should be the subject of one and the samefidei commis8um. The intention, I think, is pretty clear that theshare of each of the three sisters should be regarded as a separateinterest subject to a separate fidei commismm, and that it shoulddevolve “ on the lawful issue ” of the respective institutes ” with-out any restriction whatsoever.”
Very little assistance is to be had from the reports of decidedcases, which, it must be admitted, are not easy to reconcile. Butit may be noted that it has been held in South Africa that whenonce the fiduciary heirs have entered upon their respective sharesof inheritance a separation of interests has taken place, whichprevents the operation of the jus acerescendi in favour of the survivor.(Myiet’s Executors v. Ava, cited in Nathan, vol. III., s'. 1876.)
~Ir
With regard to the decision of the Privy Council in TMekeratnev. Abeyesekera,l on which the appellant relies, I think that the trueprinciple to be deduced from that case is that the decision of aquestion such as that now under consideration depends upon theconstruction of the terms of the will in each case.
Being of opinion that the intention of the joint testators wascorrectly construed in the previous decision of this Court, I wouldaffirm the judgment of the District Court and dismiss the appealwith costs.
Pebeira J.—I agree.
1 (1S97) 2 N. L. B. 313.
Appeal dismissed.
IuU08UE8
O.J.
Garrmv.
Manuel