Samaradiwakara and Another v De Saram and Others

• Jurisdiction: South Africa
• Judge: Lord Shaw, Lord Mersey, Lord De Villiers and Lord Robson
• Judgment Date: 21 July 1911
• Citation: 1911 AD 465
• Hearing Date: 21 July 1911
• Court: Appellate Division

Samaradiwakara and Another Appellants v De Saram and Others Respondents [*]
1911 AD 465

1911 AD p465

Citation	1911 AD 465
Court	Appellate Division
Judge	Lord Shaw, Lord Mersey, Lord De Villiers and Lord Robson
Heard	July 21, 1911
Judgment	July 21, 1911

Headnote : Kopnota

Judgment of the Lords of the Judicial Committee of the Privy Council on the consolidated appeals of Samaradiwakara and another v De Saram and others; and of De Saram and others v Samaradiwakara and another, from the Supreme Court of Ceylon; delivered the 21st July, 1911.

Case Information

PRESENT AT THE HEARING:-

LORD SHAW.

LORD MERSEY.

LORD DE VILLIERS.

LORD ROBSON.

[DELIVERED BY LORD DE VILLIERS.]

The main question to be decided in this appeal is whether on his death, which took place in 1882, Edwin Alwis had acquired such an interest in certain bequests made to him by the joint will of his parents as was capable of being and was transmitted to his heirs. The will was made on April 27, 1878, by James and Florence Alwis, who were married in community of property. It contained several clauses under distinct headings. By the sixth clause, under the heading "Ad interim provision for the children," bequests of movable and immovable property were made to several of the testators' children upon their respectively marrying or attaining the age of 25 years. By the seventh clause, under the heading "Provision for the testatrix if she survive the testator," the testators declare: "It is our will and desire that all the above movable property as above settled, and all the immovable property until they shall be transferred as above directed, and the other

following lands and houses, shall be vested in me the testatrix, subject to the under-mentioned conditions." Then follows a list of such lands and houses, the third on the list being the synagogue in Colpetty, and the fourth being Barandeniya Cottage in Colpetty. The testators then direct as follows: "Our executors shall not sell or otherwise alienate the first sixteen lands and premises herein before mentioned [including the synagogue and cottage] nor shall I the testatrix have the power to sell or otherwise alienate the same or any of them, but I shall have a life interest therein." Under the eighth heading, "Inheritance upon the death of both of us," the testators gave the following, among other, directions: "The synagogue and Barandeniya Cottage in Colpetty to vest in Edwin." By the ninth clause, under the heading, "Restrictions on the above inheritance," the testators direct that certain of the premises, including the synagogue, shall not be sold, or in anywise alienated or encumbered, but shall devolve respectively on the lawful heirs of the above-named devisees: in the absence of any such lawful heirs on the persons whom we institute heirs or his or her lawful heirs." The tenth clause contains an institution of heirs, of whom Edwin is one. The testator died in 1878, and the testatrix in 1907. After the death of the testatrix, the first plaintiff, as the surviving spouse of Edwin, instituted an action in the District Court of Colombo, assisted by her second husband, the second plaintiff, to have it declared that, as heir ab intestato of her deceased husband, she was entitled to undivided half-shares in the synagogue and the cottage. The District Court held that Edwin, on his death, transmitted no rights under either bequest to his heirs, and accordingly dismissed the plaintiffs' action. On appeal the Supreme Court of Ceylon upheld the judgment of the District Court as to the cottage, but declared that the first plaintiff was entitled to a half-share of the synagogue, with damages at a rate agreed upon by the parties. The present appeal is brought by the plaintiffs as to the cottage, and there is a crow appeal by the defendants, who represent the estate of the testatrix, as to the synagogue. No question

arises in this case as to whether or not the provisions of the joint will were binding on the testatrix after her husband's death. They...