Jury V. Attorney General Et Al.,

1937   Present: Abrahams C.J. and Maartensz J.

JURY v. ATTORNEY-GENERAL et al.

121-D. C. Colombo, 3,541

Fidei commissum-Joint will-Gift of property to male descendants of devisees -Meaning of expression-Cross objections by one respondent against another-Civil Procedure Code, s. 772.

Where property was left by joint-will, after the death of the survivor to the nephews of the testator and " after their death to be descended to their male descendants ", and the will further provided, after a prohibition against alienation, that the said heirs and their descendants shall possess the same under the bond of fidei commissum",-

Held, that the expression "male descendants" meant descendants claiming through males only.

Held further, that the limitation to male descendants was not restricted to the immediate children of the original devisees.

It is not open to the respondent to an appeal to file cross objections to a decree in favour of another respondent.

BY their joint last will dated February 28, 1868, Francisco Pulle and his wife Lucia devised after the death of the survivor all their landed property to Francisco's deceased brothers' two sons, Miguel Jury Christoffel and Francisco Jury Christoffel, and after their " death to be descended to male descendants." The will further declared " that the said property cannot be sold, mortgaged or otherwise alienated . . . ., and the said heirs and their descendants shall possess the same under the bond of fidei commissum . . . ." The will was proved in testamentary action No. 3,541 of the District Court of Colombo. In 1875 one of the properties devised was acquired by the Crown. The compensation

amounting to Rs. 2,900 was deposited in the Loan Board on April 18, 1888. Interest on this amount was drawn on September 16, 1890. As no claim to the money or interest was made after that date, the principal and interest was credited to the revenue on December 13, 1900.

Miguel Jury Christoffel died leaving a son Christopher, who died unmarried, and a daughter Anne, whose children are not represented in the proceedings. The other devisee Francisco Jury died, leaving a son Anthony, who was twice married. By his first marriage he had a daughter Flora, the intervenient, who has a son. The petitioner is Anthony's second wife.

The intervenient claimed that her son is entitled to sum of Rs. 2,900 as a male descendant of Anthony.

The petitioner alleged that male descendant meant male descendant in the male line and that the fidei commissum terminated by the death of Anthony and Miguel without male issue.

H. V. Perera, K.C. (with him N. Nadarajah), for intervenient, appellant.-The fidei commissum was in favour of the male descendants of the two devisees under the will, i.e., Miguel and Francisco Jury. Miguel's son predeceased him who thus left an only daughter Anne, who died leaving as heirs eight children who are not parties to these proceedings. Francisco Jury died leaving a son, Anthony, who was twice married. By the first marriage he had a daughter Flora, who has a son. The petitioner was Anthony's second wife. There was no issue of this marriage
.
[MAARTENSZ J.-Are the sons of daughters male descendants ?]

Anthony died in 1935 and his widow, the petitioner, was the administratrix. The Attorney-General states, that the money in this case-the proceeds of compensation for the acquisition of property-irrevocably lapsed to revenue, but between the appellant and the respondent, the position is whether there was a fidei commissum binding Anthony.

[MAARTENSZ J.-Did the fidei commissum end on Anthony's death, as he left no son but only a daughter ?]

There is no doubt that male descendants are descendants who are males ; the son of a daughter of a man is a male descendant.

[MAARTENSZ J.-Should the descent be through males ?]

It could then have been worded male descendants on the male line.

[ABRAHAMS C.J.-Suppos

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