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

WIRASINGHE et al. v. RAJAPAKSE et al.

45-D. C. Tangalla, 1,250.

Joint will bequeathing all property to children-Property acquired by one spouse after death of the other-May survivor alienate such property to outsiders ?

A husband and wife made a joint will bequeathing their property to their children and reserving life interest for the survivor. After the death of the wife the husband acquired the land in question and sold it to the defendants. The heirs of the testators brought this action for the land against the defendants, and contended that the husband had only a life interest over the land.

Held, on the construction of the will, that it was not the intention of the joint testators to dispose of any property which should be acquired by one of them after the death of the other.

LASCELLES C.J .-But the decision of the case really depends upon the extent to which the Roman-Dutch law attaches the character of irrevocability to joint wills in cases like the present one, where the surviving spouse has adiated and accepted benefit's
under the will It is only with reference to the common estate, and not with reference to property acquired after the death of one of the spouses, that the surviving spouse is held to be precluded by the terms of the will from disposing of the property.

THE facts are set out in the judgments.

De Sampayo, K.C., for the defendants, appellants.

A. St. V. Jayewardene, for the plaintiffs, respondents.

Cur. adv. vult.

April 18, 1913. LASCELLES C.J.-

David Ekanayaka and his wife Felicia, being married in community, made a joint will, which was judicially interpreted in Weerasinghe v. Gunatilleke.1[(1910) 14 N. L. R. 38.] It was there held that the survivor of the two testators had a mere usufructuary interest in the joint property, so that he or she had a right to possess the joint property during his or her life, and that after the death of both testators the whole of the property was to go absolutely to the testators' children and their descendants.

The present action relates to property which was not part of the joint estate, but was purchased by David Ekanayaka in 1888, after the death of his wife, which took place in 1883. In 1889 David Ekanayaka sold the property to the defendants. The plaintiffs ate the grandchildren of the testators, and they claim on the footing that David Ekanayaka had, under the joint will, no more than a usufructuary interest in the property, and that the sale by him to the defendants did not pass title. The question then is whether David Ekanayaka was precluded, by the terms of the joint will, from alienating the property which was acquired after the community had been dissolved by the death of Felicia. The learned District Judge has decided in favour of the plaintiffs, and from his decision the present appeal has been filed.

The property disposed of by the will is described in the first clause of the will as "our movable and immovable property which we now possess, and which we may hereafter get and tarn for the sake of our livelihood." It appears to be mainly an account of this reference to after acquired property that the learned District Judge has given his decision in favour of the plaintiffs' contention. But when it is remembered that the community of goods by marriage includes everything acquired by the spouses during marriage, as well as everything possessed by them at the date of the marriage, it would seem that the language of the will is appropriate to the purpose of disposing of only the common estate of the spouses. And I doubt whether it was the intention of the joint testators to dispose of any property which should be acquired by one of them after the death of the other.

But the decision of the case really depends upon the extent to which the Roman-Dutch law attaches the character of irrevocability to joint wills in cases lik