Samaradiwakara Et Al. V. De Saram

[IN REVIEW.]

July 18,1910

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.

SAMARADIWAKARA et al. v. DE SARAM et al.

D. C, Colombo, 26,602.

Joint will-Fidei commissum-Usufruct-Widow-" Lawful heir."

The joint will of James Alwis and his wife Florence, who were married in community of property, provided that, in the event of the testatrix surviving the testator, certain properties should vest in the testatrix, subject to the conditions, inter alia, that the testatrix should not have the power to sell or otherwise alienate the same, but should have a life interest therein. Upon the death of the survivor the property was to vest in Edwin Robert. Edwin Robert survived the testator, but predeceased the testatrix.

Held, that under the last will the dominium vested in the testatrix, subject to a fidei commissum in favour of Edwin Robert; and that as Edwin Robert predeceased the testatrix, the title vested absolutely in her.

The joint will further provided that with respect to certain specified properties that they should not be sold, or in anywise alienated or encumbered, but that they should devolve respectively on the " lawful heirs " of the devisees.

Held, that the widow of a devisee was a lawful heir by virtue of section 26 of Ordinance No. 15 of 1876.

THE facts are fully set out in the judgment of Wood Renton J.

Bawa (with him Samarawickrame), for appellants.

Van Langenberg, Acting S.-G. (with him F. M. de Saram and A. St. V. Jayewardene), for respondents.

Cur. adv. vult.

July 18, 1910. HUTCHINSON C.J.-

I have already in my judgment1 given on March 16 last sufficiently stated my reasons for adopting the construction which I placed on this will, and I have heard no new arguments which have shaken me in my opinion. I think, therefore, that it is enough for me to say that in my opinion both these appeals should be dismissed with costs.

Foot Notes:

1 See 2 Cur. L. R. 104.

July 18,1910 MlDDLETON J.-

I do not Propose to add anything further to what I have written De Saram already in these two cases. It is sufficient for me to say that I have not been convinced by the later arguments in review that I ought to change my opinion in either case. I think that both appeals in review should be dismissed with costs.

WOOD RENTON J.-

In my opinion the judgment of the Supreme Court in each of the appeals in this case should be affirmed with costs.

The litigation between the parties has arisen out of a joint will made by the late Mr. James Alwis, Advocate, and his wife, Florence Alwis, on April 27, 1878. Mr. Alwis died in July, 1878, survived by (1) his widow and joint testatrix, Florence Alwis; (2) one son, James Henry, by a first marriage; (3) another son, Edwin Robert, and three daughters, the first, third, and fifth defendants-respondents, by his second marriage. The second, fourth, and sixth defendants-respondents are respectively the husbands of the first. third, and fifth. Florence Alwis adiated her share under the joint will. On January 26, 1901, she made another will by herself, in which she confirms the joint will, and says that "it is in respect of the rest of my movable and immovable property not included " in the joint will; and the will of January 26, 1901, contains in fact no reference to the properties dealt with in that will and in claim in the present case. Both wills have been proved. The seventh defendant-respondent is the administrator, with the will annexed, of the joint estate of the deceased spouses. Edwin Robert died on June 16 leaving a widow, the first plaintiff-appellant, who is the wife of the second. In this action the appellants claim a declaration that the first plaintiff-appellant is entitled to an undivided one-half share of two properties at Kollupitiya known as .the " Synagogue " and " Barandeniya Cottage." These properties belonged to the

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