Mohammed Cassim V. Mohammed Hassen

1927 Present: Garvin and Dalton JJ.

MOHAMED CASSIM v. MOHAMED HASSEN.

350-D C. Galle, 22,413.

Legacy-Property begueathed partly disposed of-Tacit revocation.

Where a last will contained the following clause: "I do hereby direct that all the estate of my deceased brother .... be conveyed to his four children in accordance with his last will and testament which was duly proved in case No. 4,589. The half share of the immovables and all the movables given me by that will shall go to his two sons," and where it appeared that the testator had disposed of a portion of the movables devised to him under his brother's will.

Held, that the legacy must be regarded as tacitly revoked to the extent of the property disposed of.

THE plaintiffs are the two sons of one Ahamadu Lebbe. The defendant is the executor of Abdul Karim, who was a brother of Ahamadu Lebbe. Ahamadu Lebbe died in 19160 leaving a will dated February 6, 1896, by which he appointed his brother Abdul Karim sole executor, bequeathing him also one-half of his immovable property and the whole of his movable property. On January 24, 1922, Abdul Karim made a last will, and died on April 22 of the same year. By that will Abdul Karim made the following disposition: -

" I hereby direct that all the estate of my deceased brother Ahamadu Lebbe, which is now being administered in testamentary case No. 4,589 of the District Court of Galle, be conveyed to his four children in accordance with his last will .... The half share of the immovables given and all the movables given me by that will shall go to his two sons."

The plaintiffs sought to recover from the defendant the legacy to which they were entitled under the last will of Abdul Karim, or in the alternative the value of the legacy. The learned District Judge gave judgment for the plaintiffs.

E. W. Jayewardene, K. C. (with Garcia and Garvin Ismail), for defendant, appellant.

Soertsz (with R. L. Pereira and R. L. Bartholomeusz), for plaintiffs, respondent

 April 12, 1027. DALTON  J.-

The plaintiffs are two sons of one Ahamadu Lebbe; the first at the time of the institution of the action, being in Singapore and appearing by his attorney, Mohamed Salie; the second being a minor and appearing herein, by his next friend Mohamed Salie. Defendant is the executor of Abdul Karim, who was a brother of Ahamadu Lebbe and an uncle of the plaintiffs.

Ahamadu Lebbe died in 1916 leaving a will dated February 6, 1896; he left two sons, the plaintiffs, and three daughters. By that will he appointed his brother Abdul Karim sole executor, bequeathing also to him one-half of all his immovable property and the whole of his movable property. The remaining half of his immovable property he left to his children who survived after they attained the age of 21 years. Abdul Karim filed an inventory (exhibit P 2) in D. C. (Testy.) 4,589, and the estate was closed in 1917. The inventory shows the following items material to this case: -

		Rs.	c.
18.	One carriage	250	00
19.	Two horses	300	00
20.	One hackery	25	00
21.	Half share of cash	1,811	28
22.	Half share of goods in the shop	1,100	00
23.	Amount in Mercantile Bank of India
	Ltd., Galle	7,931	82
24.	Half share of amount due for as per
	compensation	1,000	00

Then follow various sums due on numerous decrees and promissory notes and other debts due to the estate of Ahamadu Lebbe.

Subsequently, Abdul Karim himself died childless in 1922 leaving a will dated January 24, 1922. His nephew, the present defendant, and Mohamed Salie were appointed executors, but Mohamed Salie is said to have renounced probate. He was in fact an insolvent

By that will Abdul Karim made the following disposition: -

1. "I do hereby direct that all the estate of my deceased brother Abdul Kader Hadji Ahamadu Lebbe Marikar, which is now being administered in testamentary case No. 4,589 of the District

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