Pedris Et Al. V. Fernando Et Al.,

1916 Present: Ennis J. and Shaw J.

PEDRIS et al. v, FERNANDO et al.

137-D. C. Colombo, 5,424/5,429.

Joint will-One daughter disinherited-Property bequeathed to survivor-Survivor dying without making another will-Does survivor die intestate-Does property pass to the children of joint testators except the disinherited daughter?

Where an heir or next of kin has been disinherited by a will and no specific devise or request has been made of the property to others, the disinheriting clause is not invalid; in such a case the next of kin, other than the persons named as excluded, are entitled to succeed.

Lidolis and Bocha were married in community of property and had three daughters, Lilian, Rosaline, and Madeline. By their joint will they confirmed certain deeds of gifts to their daughters, and a deed (No. 1ll) whereby Rosaline was " to receive Rupees

Thirty per month after our death." The will proceeded to declare that, beyond this, Rosaline should have no right to their estate, and expressly disinherited her. The will further contained  request of the residuary property to the survivor. Lidolis died first, and then Bocha, without having made another will.

Held, that Bocha had not died intestate.

ENNIS J.-The contention that the will under consideration cannot be taken as the will of the survivor Bocha, because as such it names no heir, is unsound.

SHAW J.-The clause in the will disinheriting Rosaline amounts to a gift by implication to the other two daughters of the testatrix of the residue of the estate to the exclusion of the disinherited daughter.

THE facts are set out in the judgment.

H. J. C. Pereira (with him A. St. V. Jayewardene and Canekeratne), for appellants.

Bawa, K.C. (with him M. W. H. de Silva), for first and second respondents.

E. G. P. Jayetileke (with him A. V. de Silva), for third and fourth respondents.

Cur. adv. vult.

November 24, 1916. ENNIS J.-

The first of these appeals is from a judgment declaring one Bocha Fernando to have died intestate, and directing the appellants, the applicants in No. 5,429, to pay costs. The second is from an order granting administration to Rosaline Fernando, the applicant in No. 5,424. Both appeals are in the matter of the estate of Hewadewage Bocha Fernando. It appears that one Lidolis, or Theodoris Fernando, and Bocha Fernando were married in community of property and made a joint will. They had three daughters, Lilian, Rosaline, and Madeline. The will confirmed certain deeds of gift to the daughters. It also confirmed a deed, No. 111 of February 5, 1900, whereby Rosaline "is to receive a sum of Rupees Thirty (Rs. 30) per month after our death out of the rents and profits of the premises given and granted by the said deed.

The will proceeded to expressly declare " that save and except the said monthly sum of Rupees Thirty (Rs. 30) which the said Hewadewage Rosaline Fernando is to receive during her lifetime after the death of her parents, in terms of the provisions of the said deed No. Ill of the Fifth day of February, One thousand Nine hundred, she shall have no manner of right to, or interest in, any share or part of our estate, and we do hereby expressly disinherit her and her descendants." The will then contained a request of the residuary property to the survivor. Lidolis Fernando died first. Bocha Fernando then died, without having executed any

other will. The learned Judge found that the will operated only  as the will of Lidolis Fernando, and did not operate as the will of  Bocha Fernando, and he accordingly found that Bocha Fernando had died intestate.

In Juta's Leading Cases, Part II., at page 214, there is a note: " Although every mutual will is the separate will of each of the spouses, it by no means follows that the mutual will is the will of the survivor. A mutual will may be drawn in such terms-and often is that it operates as the separate will of each of the spo

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