Rabot Et Al V. Neina Marikar Et Al.

1913 Present: Lascelles C.J. and Wood Renton J.

RABOT et al. v. NEINA MARIKAR et al.

333-D. C. Colombo, 33,129.

Joint will-Fidei commissum-Power to survivor to sell property in the event of its becoming dilapidated-Sale in breach of trust by surviving testator-Rights of bona fide purchaser-Death of fidei commissarius before fiduciarius.

A surviving spouse has no right to revoke a mutual will (a) if the mutual will disposed of the joint property on the death of the survivor, that is to say, where the property is consolidated into one mass for the purpose of a joint disposition of it; and (b) if the survivor has accepted some benefit under the will.

Even where a mutual will has massed the joint estate and the survivor has adiated and accepted benefits under the will, and he transfers or mortgages the joint estate to a bona fide purchaser or mortgagee, the transfer or mortgage as to half the estate, namely, the survivor's half, is valid and cannot be set aside by the legatees, who in such a case have a personal claim against the survivor for damages.

A joint will provided that the property was not to be mortgaged by the s

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