ANTHONISZ v. BARTON.

ANTHONISZ v. BARTON.

D. C, Galle, 6,333.

 Last will-Admissibility of will in evidence for want of registration-Ordinance No. 6 of 1866, s. 2-Creation of valid fidei commissum-Words of prohibition against alienation-Occupation of house by agreement between heirs subject to tenor of will-Prescriptive possession.

    A last will is not a " deed " which is required to be registered under the Ordinance No. 6 of 1866, section 2.

    The probate of a will produced at a trial to prove the existence and terms of the will does not come within the description given by section 2 of the Ordinance.

    No set form of words is necessary for creating a fidei commissum. Prohibition of alienation out of the family coupled with a clear indication of the person to whom the property, in the event of alienation, is to go over, constitutes a good fidei commissum without formal words.

    Where a will made by W appointed certain persons heirs of "my estate, provided always that they and their descendants shall not have the power of mortgaging or alienating the land and property," and directed that " in case any of the heirs or their descendants depart this life without issue, his or her share shall go to the surviving heirs of my body.

    Held, that this was a devise not only to the nominated heirs of W but also to their descendants.

    One of the nominated heirs of W left a daughter U, who married S B. In 1836 a house was given by the executors of W to S B to be possessed as the share of his wife, subject to the tenor and meaning of W's last will. S B possessed the house exclusively during his life, and died in 1860 leaving a last will which devised the house to his son H, who continued in exclusive possession till his death in 1894, leaving the house by will to his wife, the defendant, who held exclusive possession also at the time the present action was brought.

    The children of J U, one of the nominated heirs of the original testator W, raised an action rei vindicatio against H's widow in 1901, claiming that upon the death of S B the house passed to them and the surviving descendants of the only other of W's nominated heirs.

    Held, that S B was bound by the fidei commissum created by W; that upon the death of H the house possessed by them passed to the plaintiffs and the other existing descendants of the nominated heirs; that the possession of S B in right of his wife could not prescribe against her or his heirs; that S B's possession and that of his son H were not adverse to the title of the plaintiffs; and that the defendant's own possession, though adverse, was just short of ten years when the action was brought.

    IN this case the plaintiffs sought to vindicate an undivided half share of a house in the Fort of Galle. Their claim was based upon the last will of one Mr. Wettensleger dated 28th May, 1830, whereby the testator, after making a devise in favour of his

son Ursinus, bequeathed the residuary estate, including the house in question, in the manner set forth in the     following provision:-

    " I do hereby nominate, constitute, and appoint Johanna Maria, Johannes Euzibius, Margaretta Dorothea, Sara Lovia, and Jan Ursinus Wettensleger heirs of my estate, possessing and enjoying the same share and share alike, provided always and my will and desire is that they nor their descendants shall have the power of mortgaging, selling, or otherwise alienating the landed property or the houses and buildings constructed thereon which I may die possessed of, and that the same shall not be subject to their debts.

   '' Further, I will and desire that in case any of the heirs or their descendants shall happen to depart this life without issue, his or her share shall go to the surviving heirs of my body male or female or their lawful descendants."

    Johanna Maria died in 1830 leaving a daughter Ursina, who married Samuel Barton. They died leaving a son James, w

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