Fonseka Et Al. V. Babunona

 

Present : Mr. Justice Wendt and Mr. Justice Grenier.

 

FONSEKA et al. v. BABUNONA.            

 

D. C., Galle, 8,533.

 

Joint will-Usufruct-Dominium-Fidei commissum-Rights of survivor Power of alienation.
 

 A joint last will made by husband and wife contained the following   clauses:-
 

" 3.-We do hereby direct that after the death of either of us, the survivor of us may only possess the produce of our estate as such survivor may please, and we do hereby prohibit the survivor of us, after the death of either of us, from in any manner alienating according to the survivor's sole will the movable and immovable property   belonging   to   our   estate.
 

" 4.-We do hereby direct that after the death of both of us, should there remain unspent any movable and immovable property, the same should be divided into two equal halves, one-half to go to the heirs by blood of Gampolage Adirian Fonseka, and the remaining half to the heirs by) blood of Christina Andra Waas."
 

Held, that under the above provisions the survivor had only a usufruct in the property, and had no power to alienate any  part of  it.         

 

APPEAL   from   a   judgment   of   the    District   Judge   of   Galle (K. W. B. MeLeod, Esq.).    The judgment was as follows: -
 

" Adirian Fonseka and his wife Christina de Waas, married in community of property executed their joint will on May 7, 1869, the 3rd and 4th clauses of which are as follows: -
 

" ' 3.-We do hereby direct that after the death of either of us, the survivor of us may only possess the produce of our estate as such survivor may please, and we do hereby prohibit the survivor of us, after the death of either of us, from in any manner alienating according to the survivor's sole will the movable and immovable property belonging to our estate.
 

" ' 4.-We do hereby direct that after the death of both of us, should ther6 remain unspent any movable and immovable property, the same should be divided into two equal halves, one-half to go to the heirs by blood of Gampolage Adirian Fonseka, and the remaining half to the heirs by blood of Christina Andra Waas.' -
 

" The will appointed as executors the survivor and Liyanage Mathes (husband of sixth plaintiff). Adirian died on May 8, 1869, and the will was duly proved and probate taken by Christina and Mathes on June 24, 1869, in D. C., Galle, Testamentary, 2,285.
 

" The executors and Aberan (brother of Adirian and father of first to fifth plaintiffs) sold the premises in question to Juan Appu

 

 and Punchi Sinno (minor children of Mathes) by deed 1,527 of  November 11, 1872. The executors had applied for leave to Court in the testamentary case 2,285 for leave to sell it ' to pay off the debts appearing in the account as due to Mr. Keegel.' The order of Court was ' Allowed if there be no other heir, whether major or minor.' Thereupon Aberan signed his consent to the executors' motion as ' heir of the testator.'
 

" This was in October, 1872. I do not find any further order of the Court. I suppose it was taken for granted that the conditional order cited above became an absolute authority on Aberan signifying his consent, and the sale of November 11 was held by authority of the Court order.
 

" Punchi Sinno sold his half to Juan by deed 11,020 of September 29, 1891. Juan thus became entitled to the whole. Juan sold it to Arnolis by deed 21,873 of September 6, 1899. Arnolis died intestate, and defendant, his widow, is the administratrix of his estate (D. C., Galle, Testamentary, 3,658). She obtained the leave of Court, and the premises were sold by public auction to Juwanis Appu.
 

" Christina died on February 14, 1907, and plaintiffs claim half of the premises as next of kin to Adirian, contending that the clauses recited above constituted a fidei commissum, and therefore the deeds of transfer are all invalid as against them.
 

?The matter was argue

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