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. v

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