1921 Present: Bertram C.J, and De Sampayo J.

SOYSA v. CECELIA et al.

 88-D. C. (Inty.) Kandy, 3,166.

Last will-Request of all properties to executor-Conditions that executor should pay certain sums of money to widow and to children on their attaining I8 years of age-Does obligation attach to the properties, or are they personal ?Trust-May the obligations be enforced against executor by application in testamentary action, or must it be by a separate action ?

W bequeathed all his property to his brother J, subject to the following conditions:-

(a) The payment of debts ;

(b) Payment to widow of Rs. 50 monthly ;

(c) Education and maintenance of his children, of whom J was to be guardian ;

(d) Payment of Rs. 5,000 to the children on their attaining 18 years of age ;

(e) In the event of any children dying, his share was to go to the survivor ;

(f) If no child lived so as to become entitled to the gift all the moneys so to be apportioned were to go to a High Priest,

Held (1) that the will did not make an absolute gift of the properties to J, the executor ; (2) and that J's obligations to the widow and children were not purely personal obligations, but that the obligations were attached to the properties which were devised by W. The will in effect created a trust.

"The present case does not seem to me a case of a legacy, subject either to a conditio or modus .... The properties accorded to the executor by the testator arc not accorded to him as a free gift, but only subject to the liberalities accorded to Ms wife and children. Until these are satisfied, the administration of the estate is not concluded.'*

The beneficiaries can apply to the District Court from time to time to enforce the :- conditions " imposed upon the executor by application in the testamentary action (or, if necessary, in any guardianship action which may have supervened), and are not compelled to institute a separate action every time they have occasion to complain of any default on the part of the executor. This no doubt may have the effect .... of greatly protracting the testamentary action .... But the plain terms of the Courts Ordinance authorize and require such a protraction in such cases as this, and the Court can always see in such cases that the ordinary business of administration is brought to a conclusion. :and that the action is only prolonged for . the purpose of supervising the execution of the continuing trusts.

THE facts appear from the judgment.

M. W. H. de Silva, for appellant.

Pereira, K.C. (with him D. B. Jayatilake), for respondent.

Cur. adv. vult

. November 7,1921. BERTRAM C.J.-

This appeal arises out of a will made by one Vidanalage William Soysa, by which he demised and bequeathed all his property, movable and immovable-, to the appellant, his brother, Vidanalage Juwanis Soysa, " subject, however, to the following conditions." These conditions were:-

(1) The payment of his funeral and testamentary expenses and all his debts;

(2) The payment to his widow for her maintenance of a sum of Rs. 50 monthly during her natural life or widowhood ;

(3) The education and maintenance of his two children, of whom he constituted his brother the guardian, and of any child who might be subsequently born to him ;

(4) The payment to each of his children on their attaining the age of 18, if sons, and on the attaining of that age or on marriage, if daughters, of the sum of Rs. 5,000;

(5) In the event of any children dying, the share of the child was to devolve upon the survivors, and if only one child attained the age of 18 years, or if a daughter attained that age or married, this surviving child was to be entitled to the entire share or shares of the child or children who died ;

(6) If no child lived so as to be entitled to this gift, then all the moneys so to be apportioned were to go to the High Priest of the Sumanarama Vihare at Galkissa in Colombo for the use