FAN EYRE, Appellant, and THE PUBLIC TRUSTEE et al., Respondent

018-NLR-NLR-V-46-FAN-EYRE-Appellant-and-THE-PUBLIC-TRUSTEE-et-al.-Respondent.pdf


1)E KRETSEB J.—Fan Byre and the Public Trustee.
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1944- Present: de Kretser and Jayetileke JJ.
FAN EYBE, Appellant, and THE PUBLIC TRUSTEE et al.,Respondents.
7,071—D.C. Galle, No. 7,386
I.uni trill—Interpretation of will—Paramount rule is to find out intentionof the testator—Inconsistent clauses and words must be sacrificed to-intention—Provision for maintenance and education—No legacy.
In the interpretation of a will the paramount rule is to look for theintention of the testator as it is expressed and clearly implied in thegeneral terms of the will. When the intention is found on satisfactoryevidence, to that must be sacrificed inconsistent clauses and words.
A provision for the education and maintenance of children withoutany definite sum being mentioned with respect to each does notamount to a legacy.
^PPEAL from an order of the District Judge of Galle.
E. F. N. Gratiaen (with him G. E. C kitty) for the first to fourthrespondents, appellants in S. C- No. 70, and the first to fourth respon-dents, respondents in S. C. No. 71.
H. V. Pcrera, K.C. (with him N. E. Weerasooria, K.G., and D. IF.Fernando), for the fourth, fifth and sixth respondents (seventh, eighthand ninth respondents) in the original petition in S. C. No. 70, andappellants in S. C. No. 71.
M. T. de S. Amerasekera, K.C. (with him N. K. Choksy), for the PublicTrustee in both appeals.
M. T. de S. Amerasekera, K.C. (with him H. W. Jayawardene), for thetenth to fourteenth respondents in both appeals.
Cur. ado. vult.
December 18, 1944. de Kretser J.—
This appeal concerns the interpretation to be placed on the last willof the late A. W. Winter of Pillagoda Valley, Baddegama, who diedon December 22, 1931, leaving a last will dated October 9, 1931. Thewill affected only certain specific assets and left untouched other assets
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DE KRE'i’SER J.—Fan Eyre and Die Public Trustee,
And investments made by him for the benefit of his children. He leftlegitimate issue by his wife, the first respondent, viz., two daughtersand a son, the second, third and fourth respondents, and natural childrenby three mistresses, viz., the fifth respondent, Violet Dagmar, marriedto Hemion, the sixth respondent Hilda, married to Vander Poorten,and three sons Norman, Sydney and'Rioty, the seventh, eighth andninth respondents, by a mistress Hinnihamy, deceased; by one Asilindeceased, Harold, Irene, Edith and Lionel, the eleventh, thirteenth,fourteenth and twelfth respondents; and by one Podihamy, still alive,the tenth respondent Mary, since married.
He appointed his brother and nephew executors and trustees of hiswill and they applied for probate in January, 1032. They resigned ina few months and the Public Trustee, named as a substitute, was appointedin their places. He applied for directions of Court from time to time,•and from one of his applications it appears that the deceased marriedin 1928 and that his natural children were older than his lawful children.From papers filed in September. 1933, it appears that Mary was then 17.Harold 11, Irene 9, Edith 8. and Lionel 6 years of age. They wouldthen now be 28, 22, 20, 19 and 17 years of age respectively. It is alsostated that Sydney was born on March 17, 1912, and Rioty on July 3,1915. They are now, therefore. 32 and 29 years old respectively. Sydneyand Rioty were alleged to be in England. From an application madeby their mother, the first respondent, in 1937, it appears that the secondrespondent Evelyn was then 8 years old. and the third respondent Ailine7 years. From an application made by one Rudd on their behalf itappears that the ages given in 1933 to Harold, Irene and Edith were•correct but Lionel Roger would be now 19 years old. Rudd was appointedtheir guardian ad litem. In the present applications the Public Trusteesays the youngest child will not be 25 till 1948. Then he was bora in1923 and is now 21 years old. This is probably a mistake due to anallegation made by the widow in ignorance.
In 1942. the Public Trustee asked for directions as to an amicablepartition of Pillagoda Valley estate, as to the period during which thenatural children, were to be maintained and educated, and as to^ whetherthe half share devised to the seventh, eighth and ninth respondentswere liable to meet half the cost of such maintenance and education,and if so how provision should be made for this charge when the half'is transferred to them.
The matter came up for inquiry before the District Judge and all theparties appeared and stated their views. It is from his order that thepresent appeals have been made by the first to fourth respondents andby the seventh, eighth and ninth respondents.
Every aspect of the will has been canvassed at great length by Counseland I am deeply obliged to them for the fulness, skill and moderationwith which they presented their cases. I was rather puzzled as to theattitude of the Public Trustee for Counsel appeared both for him and for•the tenth to fourteenth respondents. -If I understand the position-aright the Public Trustee is neutral but his is a benevolent neutralitywith regard to these respondents and must not be considered to be oneof non-belligerency, to adopt a subtle distinction made in recent times.
DE KBETSER J.—Fan Byre and the Public Trustee.
6L
The will is long and somewhat complex and there are indications that.-as the draft progressed omissions were supplied. It is suggested thatfresh ideas were also imported into it, inconsistent with its earlier provi-sions. It was attested by a Proctor, who was also a Notary Public.It was alleged to have been executed a fortnight before the testator'sdeath but this does not appear to be correct. There was, however,some haste probably in its preparation. The will must be construed as awhole and apparent contradictions must be reconciled, if possible.If that cannot be done, then only will a later provision prevail. But themain thing is to get at the intention of the testator from the whole will.If authority be needed for this well-known proposition, I would referto Burrows on Interpretation of Documents, p. 71. Beale's Cardinal Rulesof Legal Interpretation, p. 607, gives many interesting dicta, e.<j., " theparamount rule is that before all things we must look for the intentionof the testator as we find it expressed and clearly implied in the generalterms of the will; and when we have found that on evidence satisfactoryin kind and degree, to that we must sacrifice the inconsistent clause or•words, whether standing first or last, indifferently ” per Coleridge J. inMorrall v. Sutton'.
It seems to me that a careful study of the will shows that there was ascheme on which it was based.
The testator distinguished carefully between his wife and her children-and his natural children. For some reason Mary is not mentioned in thewill. It is urged that the 7th clause includes her and parties have pro-ceeded hitherto on the footing that, it does and are willing to continue todo so. It is this clause which will be found eventually to be the centreof contention.
We are concerned only with Pillagoda Valley Estate, which aloneis the concern of the natural children. The testator divided it into twoequal portions and dealt with each separately. Clauses 2 (a) and 2 (6)are devoted to directions regarding his wife and children. Clauses 5 (a):and 5 (6) regard his natural children. He appears to have desired one-half to be the property of his son Anthony and the other half to be theproperty of his natural sons Norman, Sydney and Rioty, and to havecontemplated that a necessary qualification should be that they shouldbe 25 years of age. But he also carefully made provision for the othersclaiming attention. He took his wife first and in clause 2 (a) madecareful provision for her. If she remained unmarried, or re-married audwas again widowed, she was to have the income from the half destined forAnthony. She had other assets too and was expected to maintain audeducate her children. If she married then the trustee was to pay her asufficient sum for the maintenance of her children and for their educationin Ceylon or elsewhere “ in a manner suitable to their condition in life ”,after consulting the testator’s wife. Any balance was to be depositedin a bank or invested on security. It was only after her death that theproperty was to go to Anthony. But the whole provision was subjectto the carrying out of a scheme he had in his mind regarding certainnatural children, to which I shall refer later. Accordingly the trustee
1 14 L. J. Chan. 266 at p. 272.
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DE KRET8EB J.—Fan Byre and the Public Trustee.
was directed to “ hold back ” the income from this half “ till the paymentof legacies hereinafter provided It will be noted that he was to“ hold back ” and that she was some day to get this income.
In clause 2 (6) he dealt with the situation created by his wife dyingbefore the children reached the age of 25. The trustee was to hold bothcapital and income until each child reached that age or, in the case ofthe girls, married earlier. Thereupon each was to get his or her share“ free of the trust and the trustee shall pay, convey, or deliver the shareof each child after making an equal division ”, but half of PillagodaValley Estate was not to enter into the distribution and was to be given toAnthony, “ free from any trust whatsoever and absolutely ”. He providesfor substitution in the case of a child dying and again makes it clearthat no child would have a vested interest till his wife died.
It is agreed that Anthony could not get this half as long as his motherwas alive, unless she surrendered her rights, even though he had attainedthe age of twenty-five.
The first respondent has in fact married again. There is apparentlyno conflict between her and her children and her objection to the proposedpartition was based on the fact that Lionel Roger had first to become 25years of age. The 10th to 14th respondents agree with her.
The provisions regarding this specific half are complete in themselvesdown to detail. It woul'd seem that—
The income was to be held back till the legacies had been paid.
That the widow was to have the income in the manner specified.
That Anthony was to' have the property after his mother’s death
but provided he had attained the age of 25.
No specific instructions were given regarding the maintenance and
education of the children and these were left to their mothermainly but jf she re-married the trustee had a special dutywith regard to both maintenance and education.
(c) The cost of that came out of the income of this half and the otherproperty devised to them.
(/) When the mother died the trustee was obliged to transfer to thechildren, if they had qualified, and his trust would end.
There could be no liability cast on him thereafter to maintain oreducate them or any one else since the trust had passed from him.
Having dealt with this half the testator devised the other to the trusteeon trust for his natural children, viz., the seventh, eighth, and ninthrespondents, but again with provision for others having claims on him.It would seem that the testator did desire that these sons of his shouldhave half Pillagoda Valley Estate on their attaining the age of 25 but thisdesire was subordinate to his desire to seeing the others provided for.'He seems to have contemplated that the legacies he gives in clause 5 (a)would roughly correspond in value to one-fourth of this estate for heprovides that if the value of ^ fall below the value of the legacies they wereto abate proportionately. He was indebted in a sum of about Rs. 80,000,Rs. 30,000 we are told being on a mortgage of the estate. There wouldbe death duties and testamentary expenses and he did not lose sight of
DE KRKTSER J.—Fan Eyre and the Public Trustee.
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these facts for he directed his trustee to sel] the estate, if need arose,ih order to pay his debts. It was for this reason no doubt that he madethe payment of the legacies a first duty of the trustee and empoweredhim to keep back the income from his widow and children. Havingprovided for the legacies for his married daughters and his children byAsilin, and ignoring Mary, in clause 5 (6) he starts with the words “ Afterthe payment of the legacies ”. These words would correspond to “ afterthe death of my wife ” in clause 2 (6). In both cases the mere fact thatthe devisees had qualified by attaining the age prescribed was not enough,the devisees were deferred until a certain event. Counsel were agreedthat “ after the payment of the legacies ” here referred to the legaciesmentioned in clause 5 (a). In clause 1, however," he bequeathed to hiswife £200 or its equivalent in rupees to be paid in priority to any otherlegacies. In clause 5 (b), introduced with these words, after saying that-in that event the trustee was “ to deliver over” to his three sons, theseventh, eighth, and ninth respondents, their half share on their allattaining the age of 25, in the very same sentence he said “ but this halfshare as well as the other half share shall always be subject to the legaciesbequeathed to my natural children ”.
On one side it is argued that this provision only emphasizes that thelegacies provided in- clause 5 (a) should be paid and' on the other it isurged that_ these having been paid already as stipulated In the openingwords some other legacies must have been intended, and there are onlythe provisions for maintenance and education in clause 7. On a carefulconsideration I do not think the latter is the meaning to be attached tothe sentence and that it is only a way of emphasizing the need fot payingthe legacies already referred to and described . expressly as ‘1 legaciesin clause 5 (a). The testator thought of maintenance and educationas involving ” expenses ” and not' as legacies' to he paid. Undoubtedlya- provision for maintenance and education" may be a legacy but theinterpretation would vary according to the facts of" each case. A numberof cases were cited to us but I find nothing in them contrary to what Ihave just said. In most of them specific legacies had been providedand these were interpreted as being in effect legacies for their benefit,and so payable as long as they lived. In the present case there is only adirection to the trustee to maintain with no specific sum mentioned.It was conceded that the trustee had a discretion but it was argued thathe would be obliged to maintain whenever circumstances necessitatedhis doing so, i.e.., he would devote varying sums at .varying periods ineach life. It seems to me that the decision of the question raised reallydepends on another question, viz., whether the maintenance provided inclause 7 was to continue for life or not. As we indicated at the hearingit seemed to my brother and me impossible so to construe the provisions"of the will without" disregarding the rule that one should contrive toreconcile the clauses of the will and so give effect to what we can gathertherefrom to have been the probably wish of the testator.
It seems clear that" Anthony was to have his half share free of any trustwhatsoever on his attaining the age of 25, if his mother had predeceasedhim. Similarly it is clear that the seventh, eighth, and ninth respondentswere to have their half share provided the legacies had been paid. To46/11
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DE KRET8ER J.—Fan Eyre and the Public Trustee.
defer the devises until all the natural children had died would be contraryto these provisions. It seems clear also that the testator' did not provide-for the maintenance of his lawful issue beyond a certain stage, if theirmother jvere dead or unable to provide for them. So also with the-seventh, eighth, and ninth respondents. It seems most unlikely thathe would provide for the tenth to the fourteenth respondents for thewhole of their lives at the' expense of those he had specially taken thetrouble to provide for, including his wife. The terms of his will indicateplainly that on the girls marrying he considered hi's obligations to them-to cease and presumably it would be the .duty of their husbands to providefor them. In the case of the sons he seems to have considered that ontheir reaching the age of 25 they should be able to fend for themselves,with such assistance as he had specially given to them. It seems to usimpossible to infer that he intended to make a larger provision for thetenth to fourteenth respondents. It seems to. us that the provision in5 (5) can be explained otherwise. He had just said that the seventh,eighth, and ninth respondents were to get half on all attaining the age of25 and it probably struck him there was some risk of misunderstandingand he remembered that he had perhaps assumed too much when he hadsaid in clause 2 (6) that Ant-hony was to have his half at the age of 25 forthe legacies may not have been paid by then and if the trustee conveyedthat half to Anthony free of any trust whatever he might not be able to-levy on the income in order to pay the legacies: he, therefore, makes theprovision clear, viz., that the legacies mentioned in 5 (a) were first to be-paid before any of the sons got their devises.
Clause 7 is in the following terms:—“ I also direct my trustees to-maintain and educate my natural children from the income of the entiretyof Pillagoda Valley and that my two sons Sydney and Rioty be allowedto continue their education at the expense of the entire estate till theyattain the age of 21 years and these expenses shall also be a first chargeon the-half share of Pillagoda Valley devised to my natural children. ”
Mary came under the term “ natural children ” and the other legateeswere not opposed to her being maintained and educated and it is to behoped that their generosity will extend to their making further provisionfor her, if they consider it necessary. She is now married.
It is to be noted that no specific bequest is made either to the motheror to the children for their maintenance or education but a direction isgiven to the trustee to be exercised at his discretion. It is the trusteewho is directed «and whose discretion is trusted and not any one or moreof the legatees or devisees. He would have to keep the estate in histrust much beyond the prescribed ages of the devisees if he were under- the obligation to maintain the natural children during their lives, when-ever the' occasion arose. It js much more reasonable to interpret thetestator as saying that he should hand over at an ascertainable periodearlier. The meaning of the sentence “ these expenses shall al6o be a.-first charge on the half share of Pillagoda Valley Estate devised to mynatural children ” was much canvassed. It seems to us the word “ ex-penses ” is not confined to the education of Sydney and Rioty till theywere 21 for that is already amply provided for, but such expenses arar
DE KRBTSER J.—Jan Eyre and the Public Trustee.
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the expenses of maintenance and education of the natural childrengenerally. ’ The word “ also ” cannot mean that the expenses of theeducation of Sydney anl Rioty were to be a charge on the entire estate,i.e., not Pillagoda Valley alone, and yet be a charge on Pillagoda Valleyfor the one provision inoludes the other, but the word ‘‘ also ” relatesback to clause 5 (b) and adds the expenses of maintenance and educationof the natural children to the charge created for the payment of thelegacies in clause 5 (a). The scheme is thus rendered coherent, viz.,the maintenance of the lawful issue from one half of Pillagoda Valleyand the maintenance of the natural children from the other half, with aspecial provision for Sydney and Rioty at the expense of his entire estate.
Mr. Amarasekera very generously conceded that the words introducingclause 5 (b) referred to the legacies in clause 5 (a) but only in order to beable to raise the argument that the immediately following provisionrelated to some other legacy. To be consistent he should have arguedthat the words refer to all the legacies mentioned, including those whichhe contends clause 7 created for life. His next argument was thatthat clause was a provision inconsistent with clause 5 (b) and shouldpievail. We have reconciled the two and I believe done so in a waywhich will satisfy the testator’s intentions. We are not doncerned withthe pleas urged on humanitarian grounds and not-obliged to give effect tothese pleas as reflecting the supposed views of the testator. We mustgather these views from the terms of the will itself. It may assuageMr. Amarasekera’s conscience to know that there is in the record adocument in the testator’s writing which indicates that he was thenaware of the position in which he might place Asilin’s children andregretted he could do no better. We, of course, take no account of thatdocument and expressed our views during the argument in ignoranceof its existence. It only confirms our view that it is dangerous tospeculate on the intention of the testator and be influenced by humani-tarian grounds when we are in ignorance as to all the conditions.
The next question is whether the time for maintenance should belimited to- the age of 25 or earlier marriage in the case of the females.The trustee reports that the legacies mentioned in clause 5 (a) have beenpaid. Mr. H. V. Perera argues that, therefore, the half share is nowdue for transfer to the seventh, eighth and ninth respondents, andtherefore, the period of maintenance necessarily comes to an end.
Two lines of argument have been advanced against him. The testatorconsidered marriage or the age of 25 as the period for his legitimatechildren and for the seventh, eighth and . ninth respondents. Thelimitation was fixed for some good reasons and the only reason seems*o be that they would then be able to look after themselves or be lookedafter,, in the case of females, by their husbands. Is it likely he made adifferent rule for the other children, the minors getting their legaciesonly at 25 and being presumably unprovided for till then? This is anattractive line of argument but may not be sound. Rioty would betwenty-five in 1940 and by then Lionel Roger would be 13 years of ageor a little more. It might just be possible the testator thought thatmaintenance till then would be . enough, or did not think about it at all.
33. K. A 8® 415 (8 /50>
66DE KBETSER J.—Pan Eyre and the Public Trustee.
The next argument centres round the word “ payment ” at the'beginning of clause 5 (b). When would all the legacies be paid ? It is.-argued that Lionel Roger would not be paid till he was twenty-five and,therefore, till then the trustee could not hand over to the seventh, eighth.and ninth respondents. Mr. Perera argues that- the legacies were paidimmediately the executor paid them by making suitable investments.though he would hold them thereafter as trustee and the legatees wouldreceive them on their attaining the age of twenty-five. ..Much argument.followed on the terms in clause 5 (a) which required the testator to payRs. 15,000 to Violet Dagmar and Rs. 10,000 to Hilda and invest Rs. 5,000in favour of each of the children of Asilin and “ to pay the investments ”on their marrying (in the case of females) or reaching the age of twenty-five whichever was earlier. Emphasis was laid on the expression" pay the investments ”. frow, in the case of the Rs. 15,000 and Rs. 10,000there is only the direction to pay, and then they are not called legacies.Later it is provided that ..the trustee shall not be compelled to “ payany of these legacies ” till 10 years have elapsed but that the trustee.shall pay the legacies in reasonable instalments in “ his ” discretion and.if i be not enough to pay the legacies in full they were to abate. It is.urged that the trustee might invest in instalments and might be compelledafter 10 years to invest the sums mentioned and once he invested he hadpaid. But I think this is not all. The will contemplates a legatee in aposition to compel payment after 10 years. The minors who marriedmight be in such a position but not an unmarried minor or a male whowas not twenty-five years of age. 1 do not lose sight of the fact that anext friend might act on their behalf. It cannot be that the trusteecould be compelled to invest for the testator contemplated the positionof the trustee not being able to act for want of funds and only enjoinedhim to invest " as early as circumstances permit ”. He called upon himto “ invest ” and not to “ pay ”. In the case of Violet and Hilda herequested that they be paid as early as circumstances permitted. Therewas no order prescribed for the payments or investments, but presumablythe payments would have a prior claim. I do not think the words“ pay the said investments ” mean anything more than “ pay themoney invested This meaning would be in accord with the directionwhich follows that “ if any of the four legatees who are to receive Fivethousand rupees (Rs. 5,000) die before they receive the same the same shallbe paid to the brothers and sisters of the one so dying but if all of themdie before the said legacies of any part of them is paid these legaciesto the extent remaining, unpaid shall lapse ”. Now, here the deathis to take place “ before they receive the same ”. That the word“ receive ” is not intended to be different from, the word “ paid ” seems.clear from what follows, which is that if. all die before the legacies are
paid ” the legacies lapse. Here the death is before the legacies are■** paid ” i.e., the “ received ” of the earlier sentences. The trusteepays and the legatees receive. Clause 5 (a) ends with this clause forpayment of the monies invested and then clause 5 (b) begins with “ after.the payment of the legacies
Besides what would happen if one of the investments proved to behad ? I think that the testator meant that the monies invested should
DE KBESTSBB 3.—Fan Byre and the Public Trustee.
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be paid to each legatee and until that was done the legacy waa notpaid.
The effect would result in the will working harmoniously throughout.Maintenance and education till 25 or earlier marriage and then conveyanceto the devisees, who, of course, might be allowed the income which wasin excess of the requirements of the trustee. Mary is now married andher case presents no difficulty. The other four must be maintained',and educated till each reached the age of 25 or the females marry sooner-They will then be paid and will receive their legacies. The result is;that the 1st to 4th respondents succeed in their contention but notquite on the ground urged on their behalf; respondents II to 14 succeedbut not to the extent urged by them, and 7th, 8th and 9th respondentsalso succeed partially. The costs of the Public Trustee should come outof the total income of Pillagoda Valley. The 1st to 4th respondentswill receive their costs from the other half of the income. The 7th,8th and 9th respondents, appellants,, will bear their own costs or if theyprefer it, draw them from, their half of the income. The 10th to 14threspondents will receive -their costs out of the income coming from the.half devised to the 7th, 8th and 9th respondents.
With regard to partition I think there are many valid reasons whythat, should not 'be. attempted at present. Quite clearly the testatorhas not directed any such partition but on the contrary has contemplatedthat the trustee would conrol the whole income for certain purposes.He has directed that his widow should be free to occupy the bungalowwhenever she chooses and has permitted one of the natural, sons- to Ipe'appointed as an Assistant Superintendent only if the widow did notoccupy the bungalow. He here indicated that he did not desire toforce on her a situation unpalatable to her and this situation would ariseif the 7th, 8th and 9th respondents took control of a devised portionof the estate. Further, Anthony cannot be more than about 13 years-of age and he cannot now be consulted as regards the propriety of anypartition. The costs of partition might seriously affect the rights of •parties. Any surplus income from Anthony’s half was to be banked,,but this surplus would be drawn upon for the costs of partition. The-trustee would be administering the trusts for the 11th to 14th respondents*t*fi these expenses must be provided for.
– ' %t may be that at Borne later date a full and detailed scheme of parti-tion amply securing all interests may be submitted to Court for its approvalbut until that is done I think it risky and unwise to merely authorise a-partition.
Jayatii.lbke J.—I agree.
Judgment Varied.