FERDINANDUS v. FERNANDO.

FERDINANDUS v. FERNANDO.

D. C., Colombo, 7,016.

Husband and wife-Joint will-Fidei commission residui-Power of surviving widow to alienate by deed of gift or will-Estoppel.

M F and A S, husband and wife, made a joint will in 1860, wherein the 4th clause provided that " the survivor having done as he or she pleased with all our movable and immovable property, and having possessed the same, afterwards, on the death of both of us, it is our will that whatever remains shall be divided equally among our children."

In August, 1870, the spouses gifted certain property to their daughter Engeltina, who accepted the gift and stipulated that she would not " claim hereafter any inheritance out of the estate " of the donors.

M F died in December, 1870, leaving him surviving the widow of A S and twelve children.

A S, by deed of gift dated 8th October, 1894, granted three-fourths of the estate as it then stood to three of her sons, and by will of the same date the remaining fourth to another of her sons. The claims of the remaining eight children appeared to have been satisfied or extinguished before their mother's death in December, 1894.

Engeltina, claiming under the joint will of M F and A S to have a share of the lands dealt with by A S by the deed and will of 1894, sought to have a partition of those lands.

Held, (1) that Engeltina was estopped by the terms of her acceptance of the gift to her from claiming any inheritance out of the estate of her parents, and that her action for partition was not maintainable; (2) that the 4th clause of the will created a fidei commissum residui or a fidei commissum upon the residue of the estate which shall remain unspent at the death of the surviving spouse; (3) that when spouses by joint will vest their property in the survivor with power of alienation, subject to the restitution of the residue to their heirs of both spouses, the survivor need not find cautio or security for the restitution of at least the fourth part of the estate, but is at liberty to alienate the whole in his or her lifetime, but not by will; (4) that this power of alienation in the surviving spouse is only effectual in so far as the alienation is made in good faith and not exercised with a view to defrauding the substituted heirs; and (5) that whether Adriana's deed of donation of 8th October, 1894, in which she reserved to herself the enjoyment of the rents and profits, but not the power to revoke the deed, was to be treated as a testamentary disposition or not, her will of the same date was void, because a widow enjoying property with power of alienation, by virtue of the joint will of herself and her husband subject to a fidei commissum residui, cannot dispose of the residue by will.

IN this case, the original plaintiffs (Engeltina Fernando and her husband Marselis Ferdinandus) prayed that the Court do

decree that they and the defendants were entitled to certain shares of a certain property, and that the said property be partitioned among them. Both the plaintiffs having died, the administrator of their estate (Henry Ferdinandus) was substituted in their place.

The question for determination was, whether or not the original plaintiffs were in common ownership with the defendants of the lands sought to be partitioned.

It appeared that the parents of the original plaintiffs, Manuel Fernando and Adriana Swaris, made a joint will on the 31st December, 1860, the 4th clause of which ran as follows (as translated by the Additional District Judge, Mr. Felix Dias): -

" The survivor having done as he or she pleased with all our movable and immovable property, and having possessed the same, afterwards, on the death of both of us, it is our will that whatever remains shall be divided equally amongst our children."

Out of this clause of the will arose the following issues agreed to by the parties: -

(1) Had Adriana Swaris right, under the joint will of herself and her husband

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