Costa Et Al., V. Silva Et Al.,

Present: Hutchinson C.J. and Wood Renton J.

COSTA et al. v. SILVA et al.

139-D. C. Colombo, 960.

request of " all " movable property followed by enumeration of things- Are only the things enumerated bequeathed?-Interpretation of last will.

A joint will contained the following clauses:-

(4) We do hereby give and bequeath to the survivor of us all our movable property consisting of pearls, diamonds, rubies, and other gems; gold, silver, and all jewellery and wearing ornaments; all furniture made of ebony, satin-wood, jak, tamarind, and of other wood; and all vehicles and animals belonging to as, and lying at Chilaw, Colombo, and elsewhere, which are worth upwards of Rs. 10,000.

(5) We do hereby give and bequeath to A, B, and C one just half of our property whatsoever belonging to us, and the other one-half share to E and F, who shall after our death hold and possess the same without mortgaging, selling, granting, or otherwise alienating the same or any part thereof, but only shall enjoy the rents and profits thereof, and after their death the said shares shall devolve on their lawful issue without any restriction whatever.

The District Judge held that under the 4th clause all the movable properties were bequeathed, and not the things enumerated only, and that the words "our property whatsoever" in the 5th clause meant " our immovable property."

Held, that under clause 4 only the movable properties enumerated in it were bequeathed to the survivor; and that under clause 5 all the rest of the property, both movable and immovable, were bequeathed to the persons named.

THE facts are set out in the judgments.

van Langenberg, Acting S.-G. (with him Samarawickrame), for the appellants.

Bawa (with him F. M. de Saram), for the respondents.

Cur. adv. vult.

November 16, 1910. Hutchinson C.J.-

We have to make the best guess that we can as to the intention expressed by certain ambiguous words in a will. The will is the joint will of a man and his wife, who, perhaps, did not clearly know what they wanted to say, and probably understood very imperfectly the language in which the draftsman of the will tried to express what he thought they meant. They were Sinhalese; the will is in the English language; the husband signed his name in English letters, and the signature is not more illegible than most English signatures, that is, one can read it when one knows what it was meant for; the wife signed it with a mark; and a notary " certifies and attests " at the foot of the will that he read it over and explained it to the testators.

The will is dated July 7, 1894, and the 4th and 5th clauses of it are as follows: -

Fourth.-We do hereby give and bequeath to the survivor of us all our movable property consisting of pearls, diamonds, rubies, and other gems; gold, silver, and all jewellery and wearing ornaments; all furniture made of ebony, satinwood, jak, tamarind, and of other wood; and all vehicles and animals belonging to us., and lying at Chilaw, Colombo, and elsewhere, which are worth upwards of Rs. 10,000.

Fifth.-We do hereby give and bequeath to Manan Muhandirange Lucia Perera, wife of Lolbadewaduge Don Louis of Colombo; Muhandirange Ana Perera, wife of Franciscu Morias; and Muhandirange Maria Perera, wife of M. A. Don Louis de Silva of Colombo, one just half of our property whatsoever belonging to us, and the other one-half share to Philippa Morias, widow of the late Philip Juan Costa of Chilaw, and to Helena Morias, wife of Don Philip Naide of Kandana, who shall after our death hold and possess came without mortgaging, selling, granting, or otherwise alienating the same or any part thereof, but only shall enjoy the rents and profits thereof, and after their death the said shares shall devolve on their lawful issue without any restriction whatever.

The question is whether the movable property, other than the things specifically enumerated in the 4th clause, passed under th

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