In Re De Mel Et Al.,

 

1940     Present : Keuneman and Cannon JJ.

 

In re DE MEL et al.

 

61-D. C. (Inty.) Colombo, 2,362

 

Trust-No provisions in deed for appointment of new trustees-Power of surviving trustee-Trusts Ordinance, s. 75 (Cap. 72) Where in a trust deed there was no power vested in the trustees specifically named or in their successors, who are designated therein, to appoint any new trustees, a sole surviving trustee is entitled by virtue of the provisions of section 75 of the Trusts Ordinance to appoint new trustees for the purpose of filling vacancies caused by death or incapacity.

 

APPEAL from an order of the District Judge of Colombo.

 

N. E. Weerasooria, K.C. (with him A. L. J. Croos Da Brera and E. B. Wickremanayake), for petitioners, appellants.

 

Cur. adv. vult

 

October 16, 1940. KEUNEMAN J.-

 

By his deed No. 873 of 1890, V. Francisco de Mel conveyed the premises mentioned in the schedule to the deed to his sons, namely, (1) Pedro de Mel, (2) Johannes de Mel, (3) Manuel de Mel, (4) Jacob de Mel, and (5) Charles William de Mel, on certain trusts which are fully set out in the deed : -

 

" To have and to hold unto the said trustees and to the survivor and survivors of them and the executors and administrators of such survivor and other the trustee or trustees for the time being of these presents upon the trusts following that is to say ....

 

" Fifth. Upon the death of any of the trustees hereinbefore named the eldest male son of the trustee so dying shall be a trustee in the place of his deceased parent .... and he shall by virtue of such succession be vested with all the powers of an original trustee under these presents ".

 

The affidavits filed in this case establish that (1) Pedro died without issue, (2) Johannes died leaving a son, Charles Francis de Mel, (3) Manuel died leaving a son, Matthias de Mel, (4) Jacob died leaving as his eldest son, Sir Henry de Mel, (5) Charles William died leaving a son, William. According to the terms of the deed of 1890, each of these sons succeeded the deceased parent in the office of trustee.

 

Matthias de Mel and Sir Henry de Mel died before July, 1936. At that time Charles Francis de Mel was alive, and so was William de Mel, but the latter was of unsound mind since birth and never accepted the trust, and was adjudged a lunatic in lunacy proceedings No. 2,842, D. C. Colombo.

 

By his order dated July 17, 1936, in this case, the District Judge found that William de Mel was of unsound mind and incapable of acting as a co-trustee, and that Charles Francis de Mel was the sole trustee in terms of the deed of trust.

 

Thereafter, on July 23, 1936, Charles Francis de Mel, by his deed No. 36/200 ap

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