FERNANDO et al. v. FERNANDO et al.

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

FERNANDO et al. v. FERNANDO et al.

D. C., Colombo, 7,016.

Fidei commissum residui-Alienation. by fiduciarius-Security-Joint will-Residue- Fraud-" Inheritance "-Property passing under will.

Property which passes by will falls within the scope of the word " inheritance " (hereditas).

In the case of a, fidei commission residui, as a general rule, the fiduciarius must hand over one-fourth to the substituted heirs, and give security (cautio) for its restitution. But where spouses by joint will vest their property in the survivor with power of alienation, subject to the restitution of the residue to the heirs of both spouses, the survivor is not called upon to find caution for the restitution of a fourth, and is at liberty to alienate the whole in his lifetime, but not by will, but such alienation must be made in good faith, and not with the view of defrauding the substituted heirs.

THE facts and arguments sufficiently appear in the judgments.

Peiris, for the substituted plaintiff, appellant.

Dornhorst, K. C. (Sampayo, K. C., with him), for the respondents.

Cur. adv. vult.

7th May, 1903. MONCREIFF J.-

This was a suit for partition. The Judge has dismissed it on the ground that the plaintiffs had no title to any portion of the property sought to be partitioned.

Engeltina, the first plaintiff, was the wife of the second plaintiff. Husband and wife are both dead, and are represented by an administrator of their estate. Engeltina was a daughter of Manuel Fernando and Adriana Swaris, who executed a joint will on the 31st December, 1860. Her four brothers, W. Johannes, John Henry, Martinus, and James Fernando, alone out of the twenty-one defendants answered and appeared. When Manuel Fernando died in 1890 he was survived by twelve children and his widow. There seems to be no doubt that the claims of all their children (if we except Engeltina and the four respondents) upon the. estate of their parents were satisfied or extinguished before the death of their mother in 1894.

We have two translations of the fourth clause of the joint will. The first, which is put forward by the appellant, runs thus:- " After the death of one of us the survivor can possess all the movable and immovable property belonging to us according to his or her pleasure; and whatever property remains after the death of both of us shall be equally divided among our children."

The Judge says, that the following is a literal translation of the clause.-" 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." I append a third translation made by the Interpreter Mudaliyar of the Supreme Court.

On the 13th of August, 1870, the spouses executed a transfer of certain property to their daughter Engeltina in consideration of their mutual love and affection for her; and Engeltina renounced all claim to inheritance out of their estate.

Manuel Fernando died in 1870. His widow died in 1894, having disposed of the whole of the property remaining, by deed of gift and by will, both dated the 8th October, 1894, in favour of her sons, the four respondents.

The respondents say that Engeltina is concluded by her renunciation. I was at first attracted by the argument that, although Engeltina renounced any claim to inheritance, and that at a time when the joint will had been executed and both parents were alive, yet the joint will not having been altered and speaking from the death of the disposing spouses, it was impossible to say that the spouses had not changed their intention and determined to give Engeltina her share of the inheritance in addition to the donation made in their lifetime.

The joint will of Manuel Fernando and Adriana Swaris was e

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