DE KROES v. DON JOHANNES

Present: Mr. Justice Moncreiff, Mr. Justice Middleton, and
Mr. Justice Grenier.

DE KROES v. DON JOHANNES

D. C., Colombo, 13,981

Specific devise-Assent of executor-Vesting of property-Residuary legatee.

No assent on the part of the executor is necessary to pass to the devisee immovable property which has been specifically devised to him by will.

Cassim v. Marikar (1 S. C, R. 80) followed.

MONCREIFF J.-The provision in a will that the whole of the residuary estate should devolve on certain persons named therein is to be regarded as specific in regard to the immovable property.

MIDDLETON J.-A residuary devise of real estate is not specific. But a specific appropriation of immovable property to specific person is a specific devise.

APPEAL from a judgment of the District Judge of Colombo.

The facts sufficiently appear in the judgments.

E. W. Jayawardene, for defendant-appellant.

Dornhorst, K.C., and Pereira, K.G., for plaintiffs respondents.

Cur. adv. vult.

6th February, 1905. MONCREIFF J.-

This action was brought by Mary Elizabeth de Kroes and her children to eject the defendant, C. Don Johannes, from No. 46, 1st Cross street, Pettah. The defendant objects that the property is vested in the executor of the will of J. G. de Kroes, and that (under section 472 of the Civil Procedure Code) he is a necessary party.

The premises formed part of the estate of the late W. M. de Kroes, and in order to understand the pretensions of the parties it is necessary to consider the testamentary dispositions of that gentleman.

The intentions ascribed by the respondents to the testator are laudable and not unnatural-but I do not see them in these testamentary provisions. It is only by the exercise of unusual subtlety that they can even be formulated as the effect of the will and codicils. We have to construe these writings, but not to make a will for the testator. What I do see in the condicils is that the testator was in a state of excessive mental perturbation, the result being that it is difficult, if it is possible, to make sense of the codicils. The will was executed on the 15th of December, 1879, when he was dying and knew that his son Gregory was insolvent. Three days later he made the first codicil, on the 21st he made the second codicil, and he died on the 25th. We can hardly hold the notary responsible for these codicils. I have no doubt he did what he could to give effect to the instructions he received, and that the testator in his distress gave instructions for the second codicil which seemed to him to offer an escape from his embarassment. It might be wiser to abandon the attempt to construe these codicils, but I put upon them what seems to be the only possible meaning.

The will contains the following clause: -

I give, devise, and bequeath all the rest and residue of my property, immovable and movable, unto my son Gregory, under the express condition, however, that he shall enjoy only the issues, rents, and profits of the said immovable property, and that the said property or any part thereof or the said issues, rents, and profits or any portion thereof shall not be sold, mortgaged, or otherwise alienated or encumbered, and shall not be liable for any of his debts whatsoever. I will and devise that, in the event of my said son finding it necessary to sell any of the said immovable, he shall not do so except after application to the District Court of Colombo, and the proceeds of any such sale or sales shall be deposited in the said court until a suitable investment in the purchase of other immovable

property or upon mortgage security shall be available, and every and all such property so purchased or every and all principal sum or sums of money so invested shall be subject to the same condition as the above in respect of the immovable property I now possess and hereby devise. After the death of my son I desire that the said immovable property, or such

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