MENDIS v. MOHIDEEN

MENDIS v. MOHIDEEN.

D. C., Colombo. 13,506.

Spouses married in community-Joint will as to massed estate-Survivor to succeed to the whole estate and after death the estate to devolve on others- Husband dying, widow leases for a term of eight years-Death of widow before expiry of lease-Action by executor of the joint will against tenant for rent due for use and occupation-Adiation of will by survivor-Right of survivor to pass title to a bona fide purchaser.

Where two spouses who were married in community of property made a joint will granting to the survivor of them the whole estate and providing that after the death of the survivor it was to devolve on certain persons, and where the widow surviving leased a house for eight years and died when there were about five years more to run, and where the executor of the joint will sued the assignee of the lease for rent due for use and occupation,-

Held, that the plaintiff was not entitled to succeed without determination of the issue whether the assignee of the lease was a bond fide purchaser or not.

Per Bonser, C.J.-In the case of a joint will, a survivor may repudiate it after the death of the first dying spouse and stand upon his or her legal rights as the surviving member of the community.

If the survivor adiates the will, he or she is in equity at least not entitled to act inconsistently with that will. He cannot make a new will or dispose of the property by gift, but the dominium over the share-belonging to the survivor continues to be in him, and he can pass title to a bond fide purchaser.

TWO spouses, Gabriel Fernando and Poroliana, who were married in community of property, made a joint will granting to the survivor of them the whole estate, and after the death of the survivor it was to devolve on certain persons. Poroliana, surviving her husband, let a house included in the estate to one Juan on 13th August, 1896, for eight years. She died on 5th March, 1899. The lessee sublet it to defendant for three years from April, 1899. Probate was taken out on 5th June of the same year.

The executor of the joint will (Francisco Mendis) sued the assignee of Juan's lease for rent due for use and occupation of the house since Poroliana's death.

The issues framed by agreement were (1) whether Poroliana was entitled only to a life interest in the houses; and (2) whether the defendant was liable for use and occupation.

The District Judge (Mr. J. H. de Saram) found as follows:-

" The defendant had a defence to this action for use and occupation, but as one of the issues agreed to by his proctor, is, whether Poroliana Mendis was entitled to only a life interest in the houses in question, the plaintiff must succeed if that issue is determined in the affirmative.

" It seems to me, upon reading clause 4 of the last will of Gabriel Fernando and Poroliana Mendis, that the survivor of them was entitled only to a life interest. That was their intention, and that is the plain meaning of clause 4. Poroliana Mendis survived her husband. She is dead. The defendant is in possession under a lease executed by her, which has been assigned to him. The plaintiff, who is the executor of her last will, must succeed. 1 answer the first issue in the affirmative, and give the plaintiff judgment as claimed and costs."

Defendant appealed.

Van Langenberg, for appellant.-The joint will nowhere specifies the extent of the survivor's interest in the common estate. Provision is made only as to devolution of property after the death of both spouses. In cases decided in the Cape it has been held that, where a mutual will has massed the joint estate and the survivor has adiated and accepted benefits under the will and then transfers or mortgages the joint estate to a bond fide purchaser or mortgagee, the transfer or mortgage as to half the joint estate, i.e., the survivor's half, is valid and cannot be set aside by the legatees, who in such a case have a personal c

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