Livera Et Al V. Gunaratna

1914 Present: Lascelles C. J. and Pereira J.

LIVERA et al. v. GUNARATNA

165-D. C. Galle, 11, 673.

Fidei commissum-Legacy subject to a fidei commissum-Legatee dying before testator-Legacy does not lapse.

Where a testator devised a parcel of land "as a legacy " to his son C, prohibiting him from " selling, mortgaging, or otherwise disposing of the same, or from giving it as a legacy to any stranger or out of his lineage, "-

Held, that the disposition created a fidei commissum in respect of the property in the hands of C in favour of the " lineage " of the testator. On the death of C before the testator, M, who was the first in the lineage of the testator in the direct line of descent from C, was held entitled to the property.

Under the Roman-Dutch law a fidei commissum with which a legacy was burdened did not lapse by the death of the immediate legatee before the testator.

Per Pereira, T. -In the rule of the Roman-Dutch law that a fidei commissum ended by the death of the fiduciary heir before the death of the testator, the term " heir " had reference to the " testamentary heir " of that law, in whom was vested, inter alia, the right, duties, and responsibilities of the executor of our time. The rule has no place where property is devised by a will of our time to a devisee subject to a fidei commissum, although the devisee be a person who would have been an heir in intestacy but for the will.

THE facts are set out in the judgement of Lascelles C. J.

E. W. Jayewardene (with him Samarawickreme), for the plaintiffs, appellants. -On the death of Cornelis the legacy lapsed, and his share fell into the residue. The share went to Frederick and George, subject to a fidei commissum, under clauses 21 and 28. Frederick and George died only in 1904 and 1906, and the defendant has not therefore gained a title by prescription.

If legacy lapsed, it did not go to Frederick and George as in intestacy. Even a specific bequest falls into the residue. 2 Simon's New Reports 129. The residue was subject to a fidei commissum tinder the will.

The fidei commissum was binding at least for four generations. As Cornelis died during the lifetime of the testator, Mary succeeded to what would have been her father's share. She was only a fiduciary heir, and her children were not prejudiced by the possession of any one during Mary's lifetime. Mary held the property subject to the restrictions which were imposed on Cornelis. Voet 36, 1, 69. The prohibition against an alienation is a real prohibition, and not a personal prohibition. MacGregor's Voet 67, 74.

Counsel cited Morice 307; 2 Burge 112, 115: Sande's Restraints on Alienation 218, 219; 2 Walter Pereira 447; 15 N. L. R. 323; 16 N. L. R. 6; 14 N. L. R, 493; at p. 469; 17 N. L. R. 129, 133; 3 A. C. R. 139; 7 N. L. R. 43, at p. 49; Jarman on Wills 1047.

Bawa, K. C. (with him Bartholomeusz), for the defendant, respondent. -If the legacy lapsed on the death of Cornelis, it went by intestacy to Frederick and George, and it was not subject to fidei commissum. Prescription, therefore, ran from 1883 in favour of the defendant.

The prohibition against alienation is a personal prohibition binding on Cornelis, and did not bind Mary. McGregor 71, Voet 36, 1, 27, 2 Burge 112.

Counsel cited 2 Burge 109, 3 Nathan 187-5, 3 Bal. 74, 15 N. L. R. 323.

Jayewardene, in reply.

Cur. adv. vult.

July 17, 1914. Lascelles C. J. -

This is an action in which the plaintiffs claim a field called Ambagahawilakumbura under the will of their great-grandfather Petrus Dias Abeysinghe.. The case went to trial on a statement of admitted facts in the following terms: -

Admitted that Petrus Dias Abeysinghe was entitled to this property; that he died in December, 1881, leaving the last will in question; admitted probate in D. C. Galle, 2, 765, Testamentary. He had three children, Cornelis, Fredrick, and (George. Cornelis predeceased Petrus, leaving a daughter-his wife having p

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