1961 Present : Gunasekara, J., and Sinnetamby, J.

S. SRIKANDAN (

Trustee of the Trust created under the Last Will of
Francis Scobell Hill), Appellant, and M. K. ABILIN NONA (Executrix
of the Estate of the late Jimmy Hill, deceased),
Respondent

S. C. 581/58-D. C. Gampaha, 5692/M

Will-Creation of trust-Date of vesting of property in the ultimate legatees-Mode of determination-Devisee a minor-His right to claim title to devised property on attaining age of majority-Effect of direction to trustee to maintain a third party from the income-Trusts Ordinance,, ss. 57, 58.

Where a testator has made it clear in his will that not only are the ultimate legatees not to have the full enjoyment of the devised property until they attain a specified age exceeding twenty-one years, but also that some other third party is to be paid an annuity out of the income from the property, then, the Court will not give the legatees enjoyment of the property as absolute owners on their attaining majority, unless the third party dies earlier.

APPEAL from a judgment of the District Court, Gampaha.

A person died in 1924 leaving behind three mistresses and several children by two of them. By his will, which was made in 1917, he created a trust in their favour. The mistresses were to be paid a sum of Rs. 50 each every month out of the income of the trust property. The trust in favour of the children was not restricted to income, but extended, if necessary, to a portion of the principal or capital. It was also provided that, after the death of the mistresses, the trust property was to be divided equally among the children when they attained the age of twenty-one years.

The present action was instituted by the trustee after the death, in 1944, of one of the sons of the testator. It was admitted that two of the testator's mistresses were still alive. It was also admitted that all the children were over twenty-one years of age. The question for decision was whether on the death of the testator the trust property vested in his children or whether such vesting was postponed till after the date of death of the last of the three mistresses.

H. V. Perera, Q.C., with V. A. Kandiah and D. S. Wijeyewardene, for the plaintiff-appellant.

H. W. Jayewardene, Q.C., with D. R. P. Goonetilleke and L. C. Seneviratne, for the defendant-respondent.

Cur. adv, vult.

July 13, 1961. SINNETAMBY, J.-

One Francis Scobell Hill, by his last will dated 26th February, 1917, created a trust and directed his trustee to sell and convert all his real and personal property into money; and after payment of debts, testamentary and funeral expenses, to hold the balance proceeds " in trust both as to principal and income " for the benefit of certain persons designated in the will. For the purpose of convenience and easy reference, I have numbered the paragraphs of this will. Paragraph 1 refers to the revocation of former wills and paragraph 2 appoints the trustee and creates the trust. The trustee has not yet sold a tea estate belonging to the estate of Francis Scobell Hill called Walawe estate.

Francis Scobell Hill died leaving behind three mistresses and several children by two of them. In paragraph 3 he directed that the trustee shall, out of the income from the trust funds, pay to Muthu Menika, one of the mistresses a sum of Rs. 50/- per month. Incidentally, in this paragraph, he refers to Muthu Menika as " now deceased " and it is not clear whether she predeceased the testator or not. In the 4th paragraph he directs the trustee to pay to Ango Nona a sum of Rs. 50/- per month also out of the income. In like manner, in the 5th paragraph he directs a payment of a similar sum of Rs. 50/- to Podi Nona. From these provisions in paragraphs 3, 4 and 5, it is clear that the author of the trust intended to make provision for his three mistresses during their life time by payment (out of the income) of a sum of Rs. 50/- p