[Privy Council.]

Present: Viscount Haldane, Lord Buckmaster, Lord Dunedin.        
                             
PEDRIS et al. v. FERNANDO et al.

Joint will-One daughter disinherited-Property bequeathed to surviving spouse-Survivor dying without making another will-Does survivor die intestate ?-Is disinherison inoperative ?

Lidolis and Bocha were married in community of property and had three daughters, Lilian, Rosaline, and Madeline. By then-joint will they confirmed certain deeds of gift to their daughters, and a  deed whereby Rosaline was " to receive Rs. 30 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 a 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.

Where an heir 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.                                                                                           


THE judgment of the Supreme Court is reported in 19 N. L. R. 369.

May 22, 1919.   Delivered by Viscount Haldane: -

The question which their Lordships have to consider in this case is one of construction only. By their joint will two spouses, the father and mother of the daughters who are the parties in this appeal,

after ratifying certain deeds of gift in favour of their daughters, went on to ratify another deed of gift in favour of the first appellant daughter, whereby, as recited in the joint will, the first appellant was to receive only a sum of Rs. 30 per month out of the property, the subject of this deed. The joint will then declared that , " save and except the said monthly sum of Rs. 30 which " the first appellant "is to receive during her lifetime after the death of her parents in terms of " the deed just referred to, " 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 joint will next proceeded as follows: " We do hereby devise and bequeath all the rest and residue of our property, movable and immovable, of what kind or nature soever, nothing excepted, unto the survivor of us, " and appointed such survivor to be executor or executrix.

The father died first, and the mother took out probate and conveyed to herself all the property belonging to the estate of her deceased husband. She afterwards herself died without having made any testamentary disposition other than the joint will.

The point raised in the litigation which has given rise to this appeal is whether the first appellant is entitled to share in her mother's estate as if the latter had died intestate. Was the operation of the clause in the will disinheriting the first appellant exhausted when the husband died, or did it operate further as expressing the will of the mother upon her death?

The Roman-Dutch   law   applicable   to   such   joint   wills   is   well settled.    In  the   judgment   delivered   by   this   Board   in   Denyssen v. Mostert,1 [1 L. R. 4 P. C. 236.] which was approved in the later case of Natal Bank v. Rood,2 [2 (1910) A. C. 670.] it was laid down that such mutual wills are to be read as separate  wills,   the   dispositions   of   each   spouse  being  treated   as applicable to his or her share of the joint property.    There is,  in their Lordships' opinion, nothing in the will before them to exclude this construction, or to show an intention that the will should be that only  of the  spouse who died first.    If this  be  so,   there  is a clear intention expressed that the first appellant should be excluded  from succeeding along with the others who would succeed by law, in the absence of an