SOYSA v. CECELIA et al

020-NLR-NLR-V-23-SOYSA-v.-CECELIA-et-al.pdf


( 74 )
1921.
Present: Bertram G. J. and De Sampayo J.
SOYSA v. CECELIA et al.
88—D. O. {Inly) Kandy, 3,166.
Last mil—Bequest of all properties to executor—Conditions that executorshould pay certain sums of money to widow and to children ontheir attaining 18 years of age—Does obligation attach to theproperties, or are they personal ?—Trust—May the obligations beenforced against executor by application hi testamentary action, ormust it be by a separate action ?
W bequeathed all his property ro his brother J, subject to thefollowing conditions:—
(а)The payment of debts ;
(б)Payment to widow of Rs. 50 monthly ;
Education and maintenance of hi? children, of whom J was
to be guardian;
Payment of Rs. 5,000 to the children on their attaining 18
years of age;
In the event of any children dying, his share was to go to
the survivor;
(/) If no child lived so as to become entitled to the gift, all tho
moneys so to be apportioned were to go to a High Priest.Held (1) that the will did not make an absolute gift of theproperties to J, the executor; (2) and that J’s obligations to thewidow and children were not purely personal obligations, but thatthe obligations were attached to the properties which were devisedby W. The will in effect created a trust.
** The present case docs not seem to me a case of a legacy, subjecteither to a conditio or modus …. The properties accordedto the executor by the testator are not accorded to him as a freegift, but only subject to the liberalities accorded to his wife andchildren. Until these are satisfied, the administration of theestate is not concluded/'
The beneficiaries can apply to the District Court from time totime to enforce the conditions ” imposed upon the executor byapplication in the testamentary action (or, if necessary, in anyguardianship action which may have supervened), and are notcompelled to institute a separate action every time they haveoccasion to complain of any default on the part of the executor.Tliis no doubt may have the effect …. of greatlyprotracting, the tostmentary action …. But the plainterms of tho Courts Ordinance authorize and require such aprot raction in such cases as this, and the Court can always seein such cases that the ordinary business of administration isbrought to a conclusion, and that the action is only prolonged for.the purpose of supervising the execution of the continuing trusts.
( 75 )
rjTHK facta appear from the judgment.
M. W. H. de Silva, for appellant.
Pereira, K.G. (-with him D. B. JayatUake), for respondent.
Cur. adv. vult.
November 7,1921. Bertram C.J.—
This appeal arises out of a will made by one Vidanalage WilliamSoysa, by which he demised and bequeathedall his property, movableand immovable, to the appellant, his brother, Vidanalage JuwanisSoysa, “subject, however, to the following conditions.” Theseconditions were
The payment of bis funeral and testamentary expenses andall his debts;
The payment to his widow for her maintenance of a sum ofRs. 50 monthly during her natural life or widowhood ;
The education and maintenance of his two children, of whomhe constituted his brother the guardian, and of any child who
^ might be subsequently bom to him ;
The payment to each of his children on their attaining theage of 18, if sons, and on the attaining of that age or onmarriage, if daughters, of the sum of Rs. 5,000;
In the event of any children dying, the share of the child wasto devolve upon the survivors, and if only one child attainedthe age of 18 years, or if a daughter attained that age ormarried, this surviving child was to be entitled to the entireshare or shares of the child or children who died ;
Tf no child lived sons to be entitled to this gift, then all themoneys so to be apportioned were to go to the High Priest,of the Sumanarama Vihare at Galldssa in Colombo for theuse and benefit of the said Vihare.
The District Court of Kaiulv has already ordered the executor togive security for the portions apportioned to the children, and thatsecurity lias already been given by way of a mortgage in favour ofthe children, including a posthumous child. The widow, however,has had considerable trouble in securing the payment of themontlily allowance duo to herself; and the direction that theexecutor should maintain and educate the children has not beencomplied with. The widow accordingly moved, the Court for anotice to the executor to appear and show cause—
Why execution against his property and person should not issue
for the recovery of the arrears of the allowance due to thewidow;
Why he should not give the widow possession of such a portionof the testator's lands as would enable hereto maintain herselfand her children, and to defray the cost of the education ofthe children out of the income of the lands of which shemight be given pos'jcssion.
( ™ )
1921.
Bertram
C.J.
fioyaa v.Cecelia
The learned District Judge, tuning carefully examined ardseverely criticised the conduct of the executor, has ordered himwithin on© month to give security in the smn o£ Be. 2'*.000 for thedue discharge of his obligations under the will, and has ordered thatin the event of his failing to comply with the order of the Court thatho be removed from office, and that the Secretary of the Court beappointed administrator. Against this OTdcT the executor hasappealed.
Counsel for the appellant contended that the will made anabsolute gift of the lands and other property to the executor, andthat his obligations to the widow and children were unconnectedwith his title to the property and wore purely personal obligations,to be enforced, if necessary, by separate and successive actionsas occasion might require. This view of the will seems to mounarguable. There are only two ways in which such obligations couldarise, that is to say, they could arise either out of a contract, or inconnection with some property to which they are attached. Theycannot exist, so to speak, in the air. There is no contractualrelationship between the executor and the widow and children, andif these obligations are enforceable at all, it can only be in connectionwith the property dealt with by the will.
The word used in the will to describe these obligations is“ conditions.” Are these obligations, then, in the nature of acondition attached to the ownership of the bequeathed property, on’ the breach of which the property is to revert to the natural heirs ?English law knows such conditions under the name of “ conditionssubsequent,” that is, “ such as by the failure or non-performance of1 which an estate already vested may be defeated.” {Stephen'sCommentaries on the Laws of England {15th ed.), vol. 7, p. 191.)But Roman-Dutch law knows nothing of the English doctrine of" estates upon condition,” or, indeed, of the doctrine of “ estates "at all.
It may be observed that Roman (and Roman-Dutch) law ifamiliar with the idea of conditions attached to legacies, but not wit'the idea of “ conditions subsequent.” A distinction was drawnbetween “conditio” and “modus” “Conditio proprie et stridedicta est casus addittus, actum suspendens, propter incertum futurumeventum” (Voet 28, 7, 1), or, as Van Leeuwen- puts it (111., 8, 29)}
“ Conditio est causa apposUa legato, qua existente debetur legatum,deficimteperimitur ; interim pendente conditionesuspenditur” Thtis,a condition suspended the vesting of the legacy.
“Modus,” on the other hand {Voet 35,1,12), was simply anindication of the purpose for which a legacy or inheritance was tobe employed, as, for example, the erection of a monument to thetestator. “ Modus est adjedio, indicans, quid defundus post,acceptum legatum out heriditatem fieri vettt, vduti, ut monumentumexstruat” A legacy subject to a modus vests at once, subject to the
( 77 )
legatee giving security to the heirs for the carrying out of thetestator’s wishes. (Sed de implendo post acceptum legatum modopr&standa esl cautio heredi, datis fideiussioribus.) Conditio andmodus are frequently confused (Voet 35,1,13).
The present oase, however, does not seem to me a case of a legaoysubjeot either to a conditio or modus. This is a gift of the wholeinheritance. The appellant is really in the position of the insti-vutus heres. He is not a legatee. It is the widow and the childrenwho are the legatees, and, what is the important point, the legaciesare charged upon the inheritance. The properties accorded to theexecutor by the testator are not accorded to him as a free gift, butonly subject to the liberalities accorded to his wife and children.Until these are satisfied, the administration of the estate 'is notconcluded.
The Roman law was also familiar with the conception of legacies, N'[uae tractum atgue permanentiam temporis desiderant—such aslegacies in the form of an annuity (veluti, si, mater filio heredeinstUuto, Sempronio decern annua legaverit) (Voet 28, 7, 22). Induoh oases the heir was made to furnish security. (See VanLeeuwenIII., 8, 40) “ Pro legatis …. tractum temporis habentibusinventarii conficiendi cautionisque prssstandse necessitas herediimponitur”
But we have received into our legal system a principle which is ofb more far-reaching character and of more convenient application,that of the trust, a principle which our system had assimilated longbefore the enactment of the Trusts Ordinance, the main object ofwhioh was to define the law already in force. Although the obliga-tion binding upon the executor is in the will described as a condition,it is in effect a trust. It is, indeed, in exact accordance with the verywords of the definition of a trust in the Trusts Ordinance (No. 9 of1917)
“ A ‘ trust ’ is an obligation annexed to the ownership of property,and arising out of a confidence reposed in and accepted bythe owner …. for the benefit of another person, orof another person and the owner, of such a character that,while the ownership is nominally vested in the owner, theright to the beneficial enjoyment of the property is vested orto be vested in such other person, or in such other personconcurrently with the owner.”
There can be no doubt, therefore, that the executor holds thetestator’s property to the extent necessary to give effect to thetestator’s directions, and that the principles of the law of trusts canbe employed to reinforce the rights which the widow and childrenalready possessed under the Roman-Dutch law.
If there could be any doubt as to whether these obligations werepersonal to the executor, or were attached to the property, this.doubt would be set at rest by the provisions of paragraph 6 of the •
1921.
Bertram
C.J.
Scysa v.Cecelia
( 78 )
1921.
Bertram
C.J.
Soyaa v,Cecelia
will above referred to. The gifts to the children are spoken of astheir share and as devolving upon the survivors. Such languagewould be wholly inappropriate to a personal obligation undertakenby the executor. It is true there is one phrase in the will whiohdoes seem to suggest that 1 he obligation is a per nal one. It saysthat the children are. to be- main!ai .ed and educated at tho expenseof the said Vidunclagc Jmvauis ISoysa ; but. taking the whole willtogether, I can have no doubt that t he intention of the testator wasthat the obligation in question was to be attached to the propertywhich ho devised to his brother, and was, in fact, a trust annexed tothe ownership of that property.
The materiality of this is as follows: Under section 69 of theCourts Ordinance (No. I of 1889) every District Court is empowered“ to take proper securities from all executors …. of thelast wills and testaments of any deceased persons …. forthe faithful performance of such trusts ” (that is, the trusts declaredin the will), l>and to call them to account …. and to chargethem with any balance which may from time to time remain intheir hands applicable for the performance of such trusts, and toenforce the payment thereof.” The “ condition ” imposed uponthe executor in this case being, therefore, in effect a trust, thebenefioiaries can apply to the Distfict Court from time to timeto enforce it by application in the testamentary action (or, ifnecessary, in any guardianship action which may have supervened),and are not compelled, as counsel for the appellant seems to suggest,to iustitute a separate action every time they have occasion tocomplain of any default on the part of the executor. This, no doubt,may have the effect where the trusts are trusts which tractum atquepermanentiani tem-poris de&iderant of greatly protracting thetestamentary action. It is most desirable that testamentaryactions should be brought to a conclusion, and their accounts woundup as speedily as possible. But the plain terms of the CourtsOrdinance authorize and require such a protraction in such cases asthis, and the Court can always see in such cases that the ordinarybusiness of administration is brought to a conclusion, and that theaction is only prolonged for the purpose of supervising the executionof the continuing trusts.
The question, therefore, arises, what is the form of relief whichshould be given to the widow ? In the first place, I think thereshould be a declaration that the property devised to the executorunder the terms of the will is trust property to the extent necessaryfor the purpose of satisfying the directions of the testator containedin paragraphs numbered 1 to 6 in the s*id will; in the second plaet .I think that the executor, in view of his numerous lapses, ought to berequired to give additional security for the discharge of his obliga-tions. The property left by the will would appear to be amplysufficient, if properly administered, after paying all the debts of the
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deceased., to discharge the monthly allowance due to the widow,and to mainl.<in and educate her children with a surplus to spare.It has already 1 on hypothecated for the purpose of securing theportions u'lothi* »<> the children. The executor himself claims apersonal interest. t he property. I do not desire* to anticipate anyquestions . .. which may arise between the beneficiaries
and the execute * when the specific trusts have been fullyaccomplished, but it may possibly be that, after payingtho monthlyallowance to the widow and providing for the maintenance andeducation of the children, the executor is entitled to any surplusincome which may be available. I do not desire to give any decisionon that question at present. No doubt, before sanctioning such ause of the surplus, the District Judge would in-any case require to besatisfied that the corpus of the property would be sufficient toprovide the portions ultimately due to the children, and thatthere was no necessity to accumulate any surplus revenue for thatpurpose. But I think th.i (• the executor may be justly called uponfarther to mortgage by way of security for the fulfilment of hisobligations under the will any interest which he himself may havein the property of the testator under the will. I do not think thatat present it is necessary that he should be called upon to mortgageany of his own property. The latter part of the order of theDistrict Judge that in the event of the executor failing to executesuch security in the manner approved by the Court he should beremoved from his office and the Secretary substituted, and thedirections consequential thereon, may, I think, be allowed to stand.Subject to this variation of the order of the learned Judge, the appealshould, in my opinion, be dismissed, with costs.
1921*
Bertram
C.J.
Soifsa v.Ct cilia
De SAMrAYO J.—I agree.
Appeal dismissed.