Fernando Et Al V. Alwis Et Al

1935   Present  :  Macdonell CJ. and Maartensz J.

FERNANDO et al. v. ALWIS et al.

 137-D. C. Colombo, 51,422.

Fidei commissum residui-Joint will-Survivor's interest-Power of survivor to alienate-Donation by survivor-Prejudice to heirs-Gift to minors-  Validity of acceptance-Renunciation of gift.

Where a joint will contained the following clause: " All our movable and immovable property, held by us both, after the death of one of us, the survivor shall possess doing whatever he (or she) pleases and thereafter anything that is left, after the death of both of us shall be divided by the children of us both equally.",-

Held, that the clause created a fidei commissum residui and that the survivor had the right to alienate the property of the estate subject to the rights of the fideicommissary heirs in the residue.

A donation of such property by the survivor is not ipso facto void but it may be avoided on the ground that it has prejudiced the heirs.

Where a deed of gift in favour of five brothers, four of whom were minors, was accepted by the major brother (J. F.) and another person (H. S.) in the following terms : " We the under

Click Here to Read the rest of this document