Catherine Perera Et Al. V. The Missionary Apostolic Of Halpatota

1948     Present: Wijeyewardene A.C.J., Canekeratne and Windham JJ.

CATHERINE PERERA et al., Appellants, and

THE MISSIONARY APOSTOLIC OF HALPATOTA et al., Respondents.

S. C. 91-D. C. (Inty.) Grille, 8,151 Testy

 

Last Will-Legacy conditional on marriage-Amount deposited by executor in Court-Application by legatees before marriage to draw the interest- No right.

A last will contained the following clause : "I further direct the-executor of this my last will to pay a sum of Rupees Five thousand to-the two daughters of Mary at home on the occasion of their marriage as dowry provided by me and a sum of One thousand rupees to each of her two sons ". The executor deposited the sum of Five thousand rupees in Court in lieu of giving security.

On an application by the daughters of Mary still unmarried to draw the interest which had accrued to this sum-

Held, that there was no vesting of the legacy till the marriage of the-legatees and that they were not entitled to draw the interest.

APPEAL from a judgment of the District Judge, Galle.

F. A. Hayley, K.C., with H. W. Wanigatunga, for the appellants.-In this case the sum of Rs. 5,000 which forms the request of the testator to-these appellants has been paid into Court with the consent of the executor. The appellants claim to be entitled to be paid the interest which has accrued in respect of that sum. The question in this case is whether the appellants are entitled to that interest or whether such interest should form part of the residue of the estate.

Here there is a sum of money separated from the estate. The question that has to be decided is whether this sum of Rs. 5,000 is a conditional legacy and that there has been no vesting and may be no vesting at all or whether the legacy is vested. It is submitted that under the Roman Dutch Law this legacy is an unconditional legacy. See Walter Pereira's-Laws of Ceylon (Second Edition), pp. 468 and 469; also Van Leeuwen,. Kotze's Translation (Second Edition), Vol. I., Book 3, Chapter 9,. section 34, p. 399. Fonseka v. Fonseka  1[(1938) 40 N. L. R. 539.] has no bearing in this case.

It is clear from the nature of the will that the testator made no general trust and it is also clear that the testator had no intention to tie up this money. Under the English Law also this legacy must be treated as an absolute gift. In a case such as this a benignant interpretation is given and the interpretation should be the one which is in favour of preserving the lagacy. See Lang v. Pugh 1[(1842) 6 Jurist Part I., 939.]; In re Panter, Panter-Downes v. Bally 2[(1906) 22 T. L. R. 431.]; Williams on Executors, Eleventh Edition, Part 3, Book 3, Chapter 4, p. 1158.

On the question of vesting see Walter Pereira's Laws of Ceylon (Second Edition), pp. 463, 464. In this case the Court has intervened and the executor has deposited the money in Court. It is submitted that this setting apart of the money by the executor must he held to have the same effect as if the testator had set the money apart for this legacy. In such

a case

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