VANSANDEN et al. v. MACK et al

VANSANDEN et al. v. MACK et al
.
D. C, Colombo, 2,976.

Last will, construction of-" The children of the testatrix and their descendants" Fidei commissum-Tenancy in common-Ordinance No. 81 of 1844, $ 20-intention of testatrix-Family arrangement.

Per BONSER, C. J.-No special words are necessary to create a fidei commissum, but effect is given to it if it can be collected from any expressions in the instrument that it was the testator's intention to create it.

General rules for the interpretation of wills are often unsafe guides. The only true criterion is the intention of the testator, to be gathered from the will and the circumstances of the case.

Per Browne, A. J.-The expression " my children and their descen­dants'" differs in nowise from " my children and my descendants."

Per Withers, J.-A direction in a last will that the children and their descendants should not sell or alienate the property devised is in itself a creation of a  fidei commissum, and the children appointed heirs for the residue of the estate took such property subject to the fidei commissum.

If a thing is to be preserved intact and disintegrated for the benefit of coming generations, then the tenants for the time being, while the seal of the fidei commissum is still upon that thing, with possibility of succeeding beneficiaries, must be considered as tenants to whom the rule of jus accrescendi is applicable, in order to serve the express purpose for which the fidei commissum was created, and the operation of the Ordinance No. 21 of 1844, section 20, will be suspended till either there is no possibility of succession or till the term fixed for fidei commissum has expired.

Per Curiam.-Whatever may have been the intention of the testator as to the creation of a. fidei commissum, where the will has been construed by the parties as if the testator had impressed a fidei commissum on the property, and such construction has formed the basis of family arrange­ments for a long period, it should not be disturbed.

THE plaintiffs, as the surviving descendants of one Petronella J Evekenel, prayed for a declaration of title to a certain house and grounds, upon the averment that she had devised the property by her last will to her sons Johannes and Isaac by her first husband Beckkenhoff and to her daughter Sarolomina by her second husband Francois, on the condition that they should not sell or alienate the same, but that it should be possessed by them and their descendants. Plaintiffs contended that as Johannes and Sarolomina had died without issue, they were entitled to the whole property as

Click Here to Read the rest of this document