Joseph Et Al. V. Maria Vendt Et Al.,

Present: De Sampayo and Schneider JJ.

JOSEPH et al. v. MARIA WENDT et al.

64-D. C. Colombo, 688.

Jus accrescendi-Joint legacy-Defined share-Death of life-renter- Accrual of interest-Lapse into residue.

Where a last will contained a direction to the trustees to apply the rents of a certain property as follows-" One-half of such rents to M. W. during her life for her maintenance, and the other half towards the maintenance, education, advancement in life of L. M.; " and where, by a codicil the said benefit was extended to another person in the following terms: -" Whereas I am desirous that J. J. should participate and have an equal one third share in the said provision, I do therefore give and devise to J. J. an equal share and interest in the aforesaid house and rent thereof, and desire that the request should be subject to the same condition and provision as are made applicable to the other two devisees."

Held, that the request was of a defined share of the rents to each of the three devisees, and that, on the death of T. J., her interest did not accrue to the other two

Held, further, that on the death of J:, T. her share of the rents fell into the residue as indicated in clause 8 of the will.

APPLICATION by the trustees of the last will and testament of the late Mr. C. L. Ferdinands for a direction from the Court as to the distribution of one-third share of the rents of the property known as "Villa St. Leonards." The answer to the question depended on the construction of the fifth and eighth clauses of the will, taking them in connection with the codicil to the will. The fifth clause was as follows so far as it relates to the matter in issue: -" To pay and apply the rents of 'Villa St. Leonards' after the deductions for taxes and repairs as follows: One-half of such rent to my sister-in-law during the life for her maintenance, and to apply the other half of such rent towards the maintenance, education, advancement in life of my nephew, L. M., who has been under my care and protection. " The codicil provided as follows: - " Whereas I am desirous that my niece, J. J., should participate and have an equal one-third share in the said provision, I do therefore give and devise to my said niece, J. J., an equal share and interest in the aforesaid house and rent thereof, and desire that the request should be subject to the same condition and provision as are made applicable to the other two devisees. "

The eighth clause of the will contained the following direction: - I desire that my debts be paid by the sale of the real and personal property not herein specially bequeathed, and' the balance proceeds

be divided equally among my brothers and sisters.... and among M. W., L. M., and...., all of whom I appoint residuary legatees of this will.

Two questions arose for consideration: First, whether, on the death of J. J., the two surviving beneficiaries became entitled to her share of the rents; secondly, if they did not, did such share pass to the residuary legatees mentioned in clause 8, or to the intestate heirs of the testator?

The learned District Judge held that, on the death of J. J., her interests accrued to the other two devisees on the principle, of jus accrescendi.

Samarawickreme (with him H. V. Perera and F. C. Loos), for appellants. -There is no room for the application of the rule of jus accrescendi, as a defined share is given to each devisee. The rule applies to the case of a legacy to a class, and then only where a lapse occurs. Here all the legatees survived the testator. Even if J. J. predeceased the testator, the rule would not apply, as this is a request of one-third share to each.

Under the English law accrual among co-legatees occurs when a legatee dies during the lifetime of the testator, unless the benefit of survivorship is specially added (Jarman on Wills, p. 430).

A class gift is a general one, and the class bears a ce

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