Mary Nona Et Al. V. Edward De Silva

1948 Present: Wijeyewardene A.C.J., Jayetileke S.P.J. and Windham J.

MARY NONA et al, Appellants, and EDWARD DE SILVA, Respondent

S. C. 88-D. C. Kandy, 408 Testy.

 

Last will-Joint will by husband and wife-No massing of property-Death of husband-Remarriage of wife-Revocation of her will-Prevention of Frauds Ordinance, section 6.

Where there is no massing a joint will must be read as separate wills of the testators and after the death of one testator the right of revocation remains to the other. A will may be revoked by the second marriage of the testator subsequent to the execution of the will.

in re the Estate of K. V. Johannes Muppu (1879) 2 S.C.C. 14 not followed.

APPEAL from a judgment of the District Judge, Kandy

H. W. Jayewardane, with S. Wijesinha, for the 9th, 10th, 11th respon­dents, appellants.-The joint will P1 was made by one Charles de Silva and one Elizabeth, husband and wife, in the year 1921. By clause A both movable and immovable property belonging to both husband and wife were given and devised to Margaret, a daughter of Charles by a previous marriage. Clause B went on to state that if Charles was the survivor Charles would be entitled absolutely to all the property belonging to the joint estate, and that if Elizabeth was the survior Elizabeth would be entitled to the control of all the property and to enjoy the rents and protits thereof but that Elizabeth would not be at liberty to sell or dispose of that property. By clauses C and Decertain sums of money were disposed of for certain purposes. Charles died in 1922 and after Charles' death Elizabeth contracted a marriage with one Warakaulle who died in 1938 leaving Elizabeth considerable property. Elizabeth died in 1943 and at her death was possessed of a considerable amount or property, a good portion of which she had acquired after the death of Charles.

The issue that has to be decided in this case is whether the property acquired by Elizabeth subsequent to the death of Charles in 1942 passed under the joint will P1 of 1921 or whether these appellants are entitled to such property.

If on the interpretation of the will there has been massing for the purpose of the joint disposition, the property massed can be only the property which belonged to the testators at the time the joint will was made or, in any event, property which belonged to them at the time pf the death of the first dying, that is, of Charles in 1922. The joint will P1 therefore operated only in respect of the joint estate of both the testators and, therefore, property acquired by Elizabeth after the death of Charles was not dealt with under P1. See Denyssen v. Mostert 1[(1871-3) 4 P. C, Appeals 236 at 254.]; Meiring's Executors Dative v. Meiring's Executors Testamentary 2[(1877) 7 Buchnan 93 at 95.]; Weerasinghe

 

et al. v. Rajapakse et al.1[(1913) 16 N. L. R. 356.]; De Silva v. De Alwis 2[(1937) 40 N. L. R. 7 at 22.]; Fan Eyre v. The Public Trustee 3[(1944) 46 N. L. R. 59.]; Sangaramorthy v. Candappa et al. 4[(1932) 33 N. L. R. 361 at 372.]; Ex parte

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