Weerasinghe V. Gunatilleke

Dec.20,1910   Present: Hutchinson C.J. and Grenier J.

WEERASINGHE et al. v. GUNATILLEKE et al.

2061 and 207- C. R. Matara, 5,625.

Usufruct-Fidei commissum-Joint, will-Death of all children after mother, but before father.

The joint will of A and his wife B, who were married in community of property, contained the following clauses: -

" (2) It is directed that all the movable and immovable property belonging to us, be possessed by his, the above-named, during the lifetime of both of us according to our wish, and in the event of one of us predeceasing the other, the above-named property be possessed according to the wish, and dealt with according to the pleasure, of the survivor.

" (3) It is directed that after the death of both of us all the movable and immovable property belonging to us shall devolve on the children, grand-children, and such other heirs descending from us."'

Held, that under the will the surviving spouse was entitled to merely a usufruct.

THE facts are set out in the judgments.

Van Langenberg, for the first defendant, appellant.-The first defendant purchased only a half-share of the land, the share belonging to the surviving testator. On the death of the testatrix the surviving testator did not lose his right to deal with his property as he pleased, in spite of the joint will. A joint will contains two wills; on the death of one spouse his or her will takes effect, If by a joint will the entire property is disposed of, one spouse does not lose his or her right to deal with his or her share of the property

1 Portions of the judgment dealing with appeal No. 206 have been omitted from this report.

merely by the death of the other spouse. The heirs or legatees of the deceased spouse may have a personal claim against the surviving testator if he should alienate his or her share. The heirs do not have a real action to vindicate title to property alienated. The alienation by the surviving spouse of his or her share, though it be contrary to the will, is not null and void. The sale to the first defendant is therefore valid.

2. Even if the survivor does not have an unfettered right to dispose of his property, the plaintiffs cannot succeed in this action. The learned Commissioner has held that the will created a fidei commission: the surviving spouse would then be a fiduciarius; even then the fidei commissum would have failed, as the children of the testator had both predeceased the survivor. The words "grand children and other such heirs descending from us " in clause (3) of the will should be construed as words of limitation, like the words " heirs of the body."

3. Under the joint will the heirs take only a gift of the residue. Counsel cited Juta's Leading Cases, Wills, pp. 112, 119, and 120; Ferdinands v. Fernando;' Mendis v. Mohideen:2 Kurunathapillai v. Sinnapillai; 3 Samaradiwakara v. De Saram 4.

Sampayo, K.C., for the plaintiffs, respondents.-It would not matter whether under the joint will the survivor was a fiduciarius or usufructuarius. If the property vested in the children on the death of the testatrix, the survivor had only a usufruct, and he could not have alienated the property to first defendant. If the survivor was a fiduciarius under the will, the property would devolve on the grandchildren on the death of the survivor. The fact that the children had predeceased the surviving testator would not cause the fidei commissum to fail, as the grandchildren were specially mentioned in the joint will.

Elliott, for second defendant, respondent.

Van Langenberg, in reply.

Cur. adv. vult.

December 20, 1910. Hutchinson C.J.-

This appeal was referred by Grenier J. to a Court of two Judges, as the decision in it may affect other properties besides that which is the subject of this action. It raises a question on the meaning of a clause in a joint will of the late David Ekanayaka, Mudaliyar, and his wife, who were married in community of property bef

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