Tillekeratne V. Silva Et Al.

Present : Mr. Justice Wendt and Mr. Justice Middleton.

TILLEKERATNE v. SILVA et al.

D.C., Matara, 3,804.

Joint Will - Fidei commissum - Construction - Single fidei commissum -Jus accrescendi-Survivorship.

    A joint last will made by a husband and wife married in community of property, after giving the survivor of the spouses a usufruct in the whole estate, provided " that at the death of such survivor, whilst possessing only the issues, rents, and profits of this estate, all his said properties and his debts and credits, if any, shall equally devolve on all the children that we now have and those that we may hereafter get, or on such of them as may then be living, and that the said children cannot either sell, gift, or mortgage the properties which they shall so receive, and that the same shall devolve on their children and grandchildren unto generations."

    Held, that the will created one single fidei commissum over the entire estate, and that on the death of one of the children his share devolved on the surviving children according to the rule of jus accrescendi.

           Tilleheratne v. Abeyesekara 2 followed.

    THE facts are fully set out in the following judgment of the District Judge (T. E. E. Loftus, Esq.): -

    " The plaintiff in this case sues to be declared entitled to one-fifth of the land Kaluhalgodawatta. Parties admit that this land

Foot Notes:

1 (1891) 1 S. C. R. 71.
2 (1897) 66 L. J. P. C. 55; (1897) 2 N. L.R. 213.

formed one of the lands belonging to the late D. W. Tillekeratne, senior, and his wife, who executed a joint last will disposing of all their lands, including the land in question.

    '' D. W. Tillekeratne, senior, and his wife died leaving six children, of whom the plaintiff is one, and the late D. W. Tillekeratne, junior, another. In 1889 the six children executed a deed of distribution of the land belonging to the estate of their parents. By that deed the entirety of this land, among other lands, was allotted to the late D. W. Tillekeratne, junior. He in 1893 leased the land in question to defendant for a period of ten years commencing from 1st January, 1900. In 1894 he granted a further lease to the defendant for a period of eighty-four years, and in 1897 he died.

    " Plaintiff contends that the last will executed by his parents contained a valid fidei commissum, and hence the leases executed by his brother, D. W. Tillekeratne, junior, were good only during his lifetime. He now claims one-fifth of the land under his parents' will.

    " The defendant in his pleadings denied that the will contained a valid fidei commissum, and further urged that, even if it did' contain a valid fidei commissum, such fidei commissum had lapsed by the death of his lessor. The first issue, which was ' Does the last will of the late D. W. Tillekeratne, senior, and his wife create a valid fidei commissum ? ' was not seriously contested.

    " Mr. Buultjens cited the judgment in appeal in D. C, Matara, No. 3,346, in which their Lordships held that the will executed by the late D. W. Tillekeratne, senior, and his wife contained a valid fidei commissum.

    " Mr. Keuneman informed the Court that he would not contend that that judgment in appeal was wrong. He was free to admit that the will contained a valid fidei commissum. His main argument was that the will contained six different requests, each burdened with a fidei commissum.

    " Mr. Buultjens, for the plaintiff, argued that the will in question contained only one request to the six children jointly. He cited 2 N. L. B. 313 and 8 N. L. R. 283 in support of his argument that the will should be read as one joint request to the six children.

    " Mr. Keuneman, however, points to the Sinhalese words in the will relating to the disposition of the property. They are ekakara kotas wasayen. He contends that those three Sinhalese words can leave no possible doubt as to the

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