MENDIS v. FERNANDO et al.

Present : The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Middleton.

MENDIS v. FERNANDO et al.

D. C., Colombo, 21,429.

Joint will-Legacy--Death of legatee before survivor-Construction-After the death of both of us "-Usufructuary interest-Fiduciary interest-Intention.

If a request contains words of futurity, the question must be considered whether they were inserted for the purpose of postponing the vesting of the legacy, or of merely deferring the fulfilment of the legacy, as where the request to one person is made subject to a life-interest in favour of another. If such life-interest is merely a usufructuary one, the legacy vests in the legatee immediately on the death of the testator; if it be a fiduciary interest, the vesting of the legacy is postponed till after the death of the fiduciarius.

Where a joint will made by husband and wife contained the following clause: " The remaining half of the Kandy land is to be divided into three portions, and after the respective death of both of us two shares is to go to , and 1\6| of the rest of the land to our adopted sons Elias Fernando and Andris Fernando," and where the testator died in 1855, the testatrix in 1899, and Andris in 1889-

Held, that the interest left to the survivor under the will was merely a usufructuary interest, and that the legacy vested in Andris immediately on the death of the testator, and that a sale by Andris of his interest before the death of the testatrix was valid.

INTERPLEADER suit brought by the executor of the joint last will and testament of Gabriel Fernando and his wife, Poloriana Mendis, to have the judgment of the Court on the construction of the following clause in the will: " The remaining half out of the Kandy land is to be divided into three portions, and after the respective death

of both of us two shares is to go to . . . . . and one-sixth out of the rest of the land to our adopted sons Elias Fernando and Andris Fernando."

The testator died in 1855, the testatrix in 1899, and Andris in 1889.In 1872 Andris sold his interest to one Francisco Fernando, who was married to one Sarah Cooray. Francisco Fernando died in 1884, and Sarah Cooray, as his executrix, sold his interest in 1899 to the first defendant. The contest was between the first defendant and 2nd, 4th, 5th, 6th, and 7th defendants, who claimed the share that belonged to Andris as his heirs. The District Judge (F. E. Dias, Esq.) held in favour of the 1st defendant. The other defendants appealed.

H. J. C. Pereira, for the appellants, contended that the legacy did not vest in Andris till after the death of both the testator and the testatrix, and that at the time that Andris conveyed his interest, he had no interest whatever. He cited 9 S. C. C. 101 and Grotius 2, 22, 13. He also contended that the deed purporting to be signed by Andris was a forgery.

Schneider, for the respondent, cited Van Leeuwen's Cens. For. 3. 8. 29, 30; and Maasdorp's Institutes of Cape Law, vol. I. p. 176.

Cur. adv. vult.

12th April, 1906. LASCELLES A. C. J.-

The appellant in this appeal contends that the District Judge was wrong in holding that the deed No. 145, dated 23rd August, 1872, whereby Andris Fernando purported to sell his share in a house in Colombo street, Randy, was a genuine instrument; he further contends that at the date of that instrument Andris Fernando had no vested interest in the property in question.

On the first point I am not prepared to differ from the conclusion at which the District Judge has arrived after a careful examination of the evidence. The second question turns upon the construction of the joint will of Gabriel Fernando and his wife Poloriana. The appellant contends that under this will Andris, who predeceased the surviving widow, took no vested interest. The respondent on the other hand contends that upon the death of the testator Andris took a vested interest subject t

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