Caderamen V. Alles Et Al.,

1918 Present: Bertram C.J. and Shaw J.

CADERAMEN v. ALLES et at.

140-D. C. Colombo, 46,380.

Intestate succession-Person dying intestate leaving one uncle on paternal side and six uncles and aunts on maternal side--Ordinance No. 15 of 1876, s. 35.

A deceased intestate left him surviving seven uncles and aunts and their children: one uncle was on the paternal side, and six uncles and aunts were on the maternal side.

Held, that the paternal  uncle got only one-seventh and not one-half.

The words " per stirpes " in section 35 of the Matrimonial Eights Ordinance (No. 15 of 1876) governs only the words '' children of deceased uncles and aunts, " and not the earlier phrase " uncles and aunts " as well.

THE facts appear from the judgment.

Drieberg, for appellant,

Bawa, K.C. (and Samarawickreme), for respondent.

Cur. adv. vult.

August 2, 1918. BERTRAM C.J.-

In this case Mr. Drieberg has raised a point which, though barely arguable, is of some historic interest. The case under consideration is that of a deceased intestate who left neither descendants, nor brothers, nor sisters (nor their issue), nor ascendants surviving, but only uncles and aunts and their children. One of the uncles in question was on the paternal side; the other uncles and the aunts (sis in number) were on the maternal side. Mr. Drieberg contended that the property in question should be divided equally between the paternal and the maternal heirs. On this footing the paternal uncle would get one-half of the property; on the footing contended for by the other side he would get only one-seventh.

Mr. Drieberg bases this contention upon a sentence in section 35 of the Matrimonial Eights and Inheritance Ordinance, No. 15 of 1876: " Afterwards to uncles and aunts and the children of deceased uncles and aunts per stirpes." He maintains that the words " per stirpes " govern the whole clause, that is to say, not only the phrase " children of deceased uncles and aunts," but also the earlier phrase " uncles and aunts " as well; and that the meaning of " uncles

and aunts per stirpes " is that one-half should go to the paternal  uncles and aunts (or their children), and one-half to the maternal  uncles and aunts (or their children).

The simple answer to this contention is that, if this was what was intended by the Legislature, the expression which it would have used would not have been "per stirpes" but "per lineas." See Voet XXXVIII., 17, 2:-

Succeditur ab intestato vel in capita, vel in lineas, vel in stirpes  In capita successio fit, cum pro numero personarum succedentium in tolidem paries hereditas dividitur In lineas, cum bona partim paternce, partim maternce linecs defuncti cedunt, licet dispar in utraque linea succedentium numerus sit In stirpes denique, cum iure representationis succeditur; quod ius representationis est fictio iuris, qua gradu remotiores subintrant in locum proximioris defuncti 

See also Huber Prcelect. Iuris Civilis) III., 9:-

Hi autem neque secundum capita, nec representatione, bona partiuntur; Nullce enim hic stirpes surd, quce faciunt representationem, Quomodo gitur? secundum lineas.

See also Van Cleef's Case, reported in Vanderstraaten' s Reports, page xxvii; " the succession takes place in three different manners viz., by heads, branches, and lines. " This consideration in itself concludes the point, but as the question is one of some historical interest, it may be well to consider it historically.

For this purpose it is necessary to go back to the 118th Novel of Justinian, which is the foundation of all schemes of intestate succession in countries affected by the Roman law. This scheme of succession may best be understood if it is realized that its originally simple principle, namely, the creation of three successive orders of descendants, ascendants, and collaterals, is modified by the interposition of a fourth and intermediate order between the first and second,

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