Court held specific legacies of cash and house income exempt from abatement while general legacies must be reduced pro rata.

[*1335] 1972 March 11

(STYLIANIDES, AG. P.D.C., HADJITSANGARI S, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Domniki Koursoumba and Others,

Plaintiffs,

v.

Antonakis Frangoudes, executor of the

will of Stella Aristide Stasinou,

deceased,

Defendant.

(Application Nos. 12/71 and 38/71)

Will - Construction - Intention of the testator – "Μετρητά" ("Cash")

- Meaning of.

Words and phrases – "Μετρητά" - ("Cash")."

Will - Legacy - Specific and general legacies.

Estate Duty - Apportionment among beneficiaries - Section 31 of the Estate Duty Law, 1962 (67/62) and section 44(1) of the Administration of Estates Law, Cap. 189.

St. McBride for M. Houry for plaintiffs in Application 12/71.

P. Solomonides for defendant in Application 12/71.

P. Solomonides for plaintiff in Application 38/71.

No appearance for the defendant in Application 38/71.

M. Houry for the beneficiaries.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, AG. P.D.C. Stella Aristidou Stasinou, late of Limassol died on 27/3/68. [*1336]

The deceased left a spouse but no child or descendant thereof. Her only heirs are her husband, her sisters Olga Aristidou and Domniki Koursoumba and the children of her pre-deceased sister Anna Marcou Patsale, Zozo Valdan Malian and Stella Panicou Doritou.

On 7/6/65 the deceased executed a will. The named executor, Antonakis Frangoudes, obtained Probate in Application No. 64/68.

Disputes arose as to the construction and material validity of the will.

The sisters of the deceased and the niece, Zozo Malian, personally and as nearest friend of her children, Anna and Elizabeth, beneficiaries under the will, took out a summons (Appl. 12/71) whereby they pray for:-

"(a) Order of the Court ordering the executor to carry out his duties as provided in S. 41 of The Administration of Estates Law, Cap. 189 and particularly to estimate the estate of the deceased and if necessary to abate the legacies, if the testatrix disposed more than the disposable portion.

(b) That the defendant, subject to the provisions of S. 46 of Cap. 189, distributes the statutory portion and the disposable portion.

(c) That the defendant renders an account of his administration. [*1337]

(d) That the defendant deposits all the money of the estate in his possession in Court.

(e) That the defendant liquidates the legacies.

(f) Any other order the Court may deem fit".

The husband of the deceased by another Summons (Appl. No. 38/71) seeks:-

"(a) That the executor of the will of the deceased does not distribute the net estate of the deceased (after the payment of the taxes, costs and fees of the executor and any obligations of the deceased) to the beneficiaries of the will and/or to the legal heirs before the Court adjudicates on the legality and/or validity of the legacies, taking into consideration, inter alia, the provisions of ss. 41 (1) (b), 41(2), 44(b) and

50 of Cap. 195 and s. 44(2) of Cap. 189.

(b) The sale by public auction of the house left by the deceased.

(c) That the executor disposes of the shares of the infant beneficiaries and/or heirs as the Court might direct".

When these cases were mentioned to the Court, on the application of the Counsel of the parties, the Court directed that applications 38/71 and 12/71 be tried together as they relate to the same subject matter. [*1338]

All interested parties agreed that the following be determined first:-

"(a) The interpretation of clause 1 of the Will;

(b) Whether the legacy to Anna Valdan Malian is a specific one, and therefore, she is entitled to the net income of the house from the date of death, and

(c) How, if necessary, the legacies will be abated or reduced pro rata".

Probate Application 64/68 containing the original wil1 was produced by consent (exhibit 1).

The will in the present case is in the handwriting, probably, of the drafter. It is not a long document and reads as follows:-

"ΔΙΑΘΗΚΗ

Αυτή είναι η μόνη διαθήκη εμού της Στέλλας

Αριστείδου Στασίνου εκ Λεμεσού Κύπρου, γενομένη εν Λεμεσώ Κύπρου σήμερον την 7

Ιουνίου, 1965. Ουδεμίαν προγενεστέραν διαθήκην έκαμα.

(1) Δίδω και

κληροδοτώ προς τον σύζυγόν μου Αριστείδην Στασίνου εκ Λεμεσού, εάν ζη κατά τον

χρόνον του θανάτου μου, το αναλογούν εις αυτόν μερίδιον επί της νομίμου μοίρας

ήτοι το 1/4 της περιουσίας μου, το οποίον ορίζω να λάβη εκ των μετρητών τα

οποία θα ευρεθούν κατά τον θάνατον μου. [*1339]

(2) Δίδω και

κληροδοτώ προς την Άννην Βαλδτάν Μαλιάν θυγατέρα της ανεψιάς μου Ζωζώς Βαλδτάν

Μαλιάν και βαπτιστικήν μου την οικίαν μου την κειμένην εν Λεμεσώ κατά την οδόν

Όθωνος και Αμαλίας αρ. 26 με άπαντα τα έπιπλα και σκεύη τα οποία ήθελον ευρεθή

εντός αυτής.

(3) Δίδω και

κληροδοτώ προς την Άνναν Βαλδτάν Μαλιάν και την αδελφήν της Ελισάβετ

(Elisabeth) Βαλδτάν Μαλιάν άπαντα τα κοσμήματά μου άτινα ήθελον ευρεθή κατά τον

χρόνον του θανάτου μου εξ ημισείας.

(4) Δίδω και κληροδοτώ προς τον Ανδρέαν Πανίκου Δωρίτην εκ Λεμεσού £200.

(5) Δίδω και

κληροδοτώ εις την Εκκλησίαν Αγίου Νικολάου, Κοιμητήριον Λεμεσού £100.

(6) Εκ των μετρητών

τα οποία θα έχω κατά τον χρόνον του θανάτου μου μετά την αφαίρεσιν των ποσών

των παραγράφων 1, 4 και 5 και εάν ο σύζυγός μου προαποβιώση και το ποσόν της

πρώτης παραγράφου του συζύγου μου δίδω και κληροδοτώ το 1/4 εξ αυτών προς την

Άνναν Βαλδτάν Μαλιάν, το 1/4 προς την Ελισάβετ Βαλδτάν Μαλιάν και τα υπόλοιπα 2/4 εις

τους κληρονόμους μου την Όλγαν Κυριάκου Αποστόλου, αδελφήν μου το 1/3 των 2/4

την Δομνίκην Γεωργίου Κουρσουμπά, αδελφήν μου το 1/3 των 2/4 και τα τέκνα της

αποβιωσάσης[*1340]

αδελφής μου

Άννας Μάρκου Πατσάλη ήτοι την Ζωζών Βαλδτάν Μαλιάν και Στέλλα Πανίκου Δωρίτου το 1/3 των 2/4 εξ ίσου μεταξύ των

δύο, ως κληρονόμων διά το μερίδιον των αδελφών και ανεψιών μου τούτων επί της νομίμου μοίρας.

Διορίζω εκτελεστήν

της διαθήκης μου ταύτης τον Αντωνάκην Φραγκούδην Κυβερνητικόν υπάλληλον εκ

Λεμεσού.

Η Διαθέτις

(υπ.) Στέλλα Αριστ. Στασίνου

7-6-65

Υπεγράφη υπό της Στέλλας Αριστείδου Στασίνου, εκ Λεμεσού την 7-6-1965 ενώπιον και

παρουσία ημών πάντων παρισταμένων ταυτοχρόνως, οίτινες ενώπιον και παρουσία

ταύτης τη αιτήσει της και παρουσία αλλήλων υπογράφομεν τα ονόματα μας ως

επιβεβαιωταί μάρτυρες.

(υπ.) Ιωάννης Μ. Λακερίδης.

(υπ.) Κ. Α. Λανίτης.

The perusal of this will shows that it was not drafted without professional aid or skill.

As it emerges from the inventory and the accounts filed, and the assessment of the Estate Duty Office, the property of the deceased comprised a house, devised by clause 2 of the will, an amount deposited in the current [*1341] account with the Popular Bank, money due to her and secured by mortgages, jewellery and furniture found in the house.

Section 36 of the Wills and Succession Law provides:-

"Every will shall be construed, with reference to the estate in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will".

In Halsbury's Laws of England, 3rd edition, volume 39 we read:-

"1438. The cardinal rule of English law as to the effect of a will is that the intention of the testator, as declared by him and apparent in the words of his will, has effect given to it, so far and as nearly as may be consistently with law. The application of the rule requires a Court of construstion to consider two matters: First, what is the intention of the testator disclosed by the will; and secondly, how can effect be given to that intention. Of the first principle there are two braches, (i) that the testator’s intention is to be sought in the words that he has used in his will given, normally, their natural and grammatical meaning; (ii) that that meaning can admit of modification to accord with a real intention shown by the will as a whole. [*1342]

1439. The first duty of a court of construction is, therefore5 to ascertain the language of the will, to read the words used and ascertain the intention of the testator from them; unexpressed mental intentions are irrelevant. Where the will must he in writing, the only question is, what is the meaning of the words used in that writing. The expressed intention is in all cases taken as the actual intention, whatever the testator in fact intended, and the Court cannot give effect to any intention which is not expressed or implied in the language of the will.

1440. The court of construction, in ascertaining

the intention, is concerned with three distinct matters, namely, (1) the words that the testator has used to express

his intentions; (2) the meaning of these words in relation to the persons and things described, that is to say, who and what are the specific persons and things to be identified as the donees and the subjects of disposition, or as the persons and things otherwise mentioned in the will; and (3) the meaning of the words in relation to the disposition of property among the donees.

When the intention of the testator has been discovered, the inquiry then to be made is [*1343] whether there is any rule preventing the intention from taking effect, and, generally, how the intention can be effectuated; and the Court is under a duty to give effect to it accordingly, however it is expressed.

Any rule the application of which is independent of the intention of the testator, and may operate against or to defeat that intention, is generally known as a rule of law.

Any rule adopted by the Court for ascertaining or effectuating the intention of the testator as declared in the will, and dependent, for its application to any will, upon whether it is consonant with or contrary to the whole will, is generally called a rule of construction".

Lord Wensleydale in Abbot v. Middleton, Ricketts v. Carpenter (1858) 7 H.L., Cas. at p. 114 said:-

"The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation, that it is to be sought in his words, and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question which is, what that which he has written means. The will must [*1344] be expressed in writing, and that writing, and that writing only is to be considered".

On the other side, Lord St. Leonards in Grey v. Pearson (1857) 6 H.L. Cas. at p. 99 said:-

"Nobody is more disposed than I am to abide by clear words, and to give to them their natural and grammatical meaning; but I never did, and I never can come to this conclusion, that the words of a will cannot admit of modification according to the real intention of the testator, as you find it from other expressions, or from the whole context of the will. It is difficult to lay down any abstract rule upon the subject, but where I find the intention and I find words pointing out the intention, and that if I give to the words their simple meaning according to grammar and according to their plain prima facie import, I defeat the intention, I hold that I am bound by every rule, both of law and equity, to see whether I cannot give to them, by natural construction, an import which will effectuate and not defeat the intention".

Viscount Simon, L.C. in Perrin v. Morgan (1943) 1 All E.R. p. 187 at p. 190 expressed the rules of construction of wills thus:-

"The fundamental rule in construing the language of a will is to put upon the words used the [*1345] meaning which, having regard to the terras of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions’ of the testator".

The old approach in construing a will was: "It is not what the testator meant, but what is the meaning of his words". This was corrected by the final blow in Perrin v. Morgan (supra).

Lord Atkin at p. 194 said: -

"The sole object is, of course, to ascertain from the will the testator’s intentions".

And, further down he remarked: -

"I anticipate with satisfaction that henceforth the group of ghosts of dissatisfied testators who, according to a late Chancery judge, wait on the other bank of the Styx, to receive the judicial personages who have misconstrued their wills, may be considerably diminished".

Lord Denning, M.R. in Re Rowland (deceased) Smith v. Russell and Others (1962) 2A11 E.R.p. 837 at p.

841 said:-

"In point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that

his property is disposed of in the way he wished. True it is that you must [*1346] discover his intention from the words that he has

used; but you must put on his words the meaning which they bore to him. If his words are. capable of more than one meaning, or of a wide meaning and a narrow meanings as they often are, then you must put on them the meaning which he intended them to convey, and not the meaning which a philologist would put on them. In order to discover the meaning which he intended, you will not get much help from a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you. What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at the time, and then say what he meant by his words".

The testatrix knew who her heirs-at-law were. She also was Well aware of her property. Her only immovable property was a house. That, with all furniture and household goods (skevi) found therein, she bequeathed to her goddaughter, the daughter of her niece (clause 2 of the will). All her jewels (kosmimata) she left to Anna and Elisabeth V. Malian.

The substantive part of all six clauses of the will commence with the words: "I give and bequeath" (δίδω και κληροδοτώ)[*1347]

The rule is, that words in a will are not to be rejected or supplied, unless there cannot be any rational construction of the words as they stand. (Re Messenger's Estate (1937) 1 All E.R.355; Re Turner (1949) 2ALL E.R. 935).

Clause 1 and 6 bear a common element.

In the first clause the testatrix bequeathed to her husband. "Το αναλογούν εις αυτόν μερίδιον επί της νομίμου μοίρας ήτοι το

¼ της περιουσίας μου το οποίον ορίζω να λάβη εκ των μετρητών" (his share on the undisposable portion

i.e.1/4 of my estate which I direct he should take out of the 'metrita' – μετρητά).

By clause 6 she bequeathed the 2/4 of her metrita which she would have at the time of her death after the deduction of the amounts of clause (1) (the legacy to the husband), 4 and 5, a legacy of £200 to Andreas Panicou Dorites and £100 to the St. Nicolas Church, the cemetery of Limassol, to her heirs as heirs for the share of my sisters

and these nieces on the statutory portion. (Ως κληρονόμων δια το μερίδιον των αδελφών και ανηψιών μου τούτων επί

της νομίμου μοίρας). By clause (6) she provided that if her husband died before her, the amount bequeathed to him would go to the persons named therein.

"Νόμιμος μοίρα" is defined by law. Did the testatrix use these words in the legal sense? "Νόμιμος μοίρα" is the statutory portion. In the Greek version of the Wills and Succession Law, 1895 "νόμιμος μοίρα" is defined in s. 19 thus:- [*1348]

"Νόμιμος μοίρα" το μέρος

εκείνο της περιουσίας του, όπερ δεν δύναται να διαθέτη ούτω (διά διαθήκης), ή δεν διέθεσεν

ούτω". (See Νομοθετήματα 1878-1906).

"Statutory portion" means that part of the movable property and immovable property of a person which he cannot dispose of by. will. (S. 2 of The Wills and Succession Law, Cap. 195).

"Disposable portion" means that part of the movable property and immovable property of a person which he can dispose of by will.

Section 41(1)(b) of The Wills and Succession Law provides that where a person dies leaving a spouse but no child, nor descendant thereof, the disposable portion shall not exceed one-half of the net value of his estate.

Our testatrix could dispose of only

the one-half share of the net value of her estate as her husband survived her. If she survived her husband, then the

disposable portion would be the whole of her estate. (S. 41(1)(c)).

By clause 1 she directs the husband to receive his legal share from the 'metrita'. By clause 6 she bequeaths all the balance of her 'metrita'.

'Metrita' in Greek bears more than one meaning.

"The duty of the Court is to ascertain as between usual meanings which is the correct interpretation of the particular document". [*1349]

Lord Atkin in Perrin v. Morgan (supra), referring to the use of the word "money" in a will said at p. 194:-

"...the construing Court has to ascertain what was meant, being guided by the other provisions of the will and the other relevant circumstances, including the age and education of the testator, the nature of his property at the date of his will, his relations to the beneficiary chosen, whether of kinship or friendship, the provision for other beneficiaries and other admissible circumstances. Weighing all these, the Court must adopt what appears the most probable meaning. No will can be analysed in vacuo ......"

Previous cases should be approached in the light of the following passage from the judgment of Lord Wensleydale in the case of Abbot v. Middleton (28 L.J. Ch. 33):

"We are no doubt bound by decided cases, but when the decision is not upon some rule or principle of law, but upon the meaning of words in instruments, which differ so much from each other in the context and the peculiar circumstances of each case, it seldom happens that the words of one instrument are a safe guide in the construction of another". [*1350]

In Rea Gallona and Another v. George Garanis and Another, 18 (I) C.L.R. p. 98 it was held that the testator used the word 'metrita' in his will to mean not only actual currency under his hand at the time of his death hut also money which has actually accrued due at the time of his death and money then payable on demand.

There is no evidence of the nature of the property of this testatrix at the time of the will besides the description she herself gave in her own will. We presume that it did not change in just under three years. Besides her house, furniture and jewels she describes her property as 'metrita'. At the time of her death she had no money in hand. In her current account at the Bank she had £787. She had money to receive from mortgages. We do not disregard that at least four out of the six mortgages, as it is apparent from the accounts filed on 23/3/71 , were effected in 1966 and 1967, after the date of the will. All the money due under the mortgages were probably payable at the time of her death.

On the date of the will, was all her money deposited in the Bank? Was it out on loan? Was it on bonds or other mortgages? Were the debts, if any, due and payable? We were left in darkness. No evidence was adduced and no statement was made to enlighten us. Be that as it may, the deceased clearly intended to dispose of all her property, movables and immovables. [*1351]

We are of the opinion, and so hold, that this testatrix by the word 'metrita' meant actual currency in hand, her accounts at the Bank and any amounts due to her by her debtors. To hold otherwise would be to defeat the clearly expressed intention of the testatrix.

The words used in this will, the contents of the will, the tenor of the will, the objects of the bounty of the testatrix, the relationship to the beneficiaries, her property, and every other matter which we may take into consideration, leave no doubt that she intended to and actually disposed of the whole of her estate. She was cautious to make a balanced will; a will whereby she bequeathed to her heirs at law about half of her estate. She even provided for the event of the lapse of the legacy to her husband. We compare and correlate clause 1 and 6 of the will. They point unequivocably and support our aforesaid conclusion. There are no nugatory words in clause 1. We are not entitled to ignore clause 1. She knew that her husband was entitled under the law to at least 1/4 of her estate, i.e. the one-half share of the statutory and undisposed portion. (S. 44 of Cap. 195). She bequeathed to him nothing more nothing less.

Section 41 (2) of The Wills and Succession Law provides:-

"Where a person has purported to dispose by will of a part of his estate in excess of the disposable portion, such disposition shall be [*1352] reduced and abated proportionately so as to be limited to the disposable portion".

Under the English Law, a testator could dispose of all his property. Our system of succession followed the model of the Italian Code. The principle of legitim is an integral part of those modern systems of law, which have a Roman ancestry more or less direct.

S. 44(1 ) of the Administration of Estates Law, Cap. 189 reads:-

"Specific legacies shall take rank and be liquidated after the payment of the just debts, and, unless the will shows a contrary intention, shall be liquidated before the general legacies".

The value of the property of which the deceased died possessed was assessed by the Commissioner of Estate Duty as follows:-

1. Bank account

£787

2. Debtors

£2,707

3. Various, articles

£162

Immovables (the house)

£3,657

Funeral expenses

£3,600

£7,257

NET

£7,196 [*1353]

The value of the house was agreed by the parties at £3,600. The furniture and household goods were by order of Court sold and £.67 were realised.

The movables excluding the furniture, household goods, wearing effects and jewels were estimated by the executor at £3,616.280. (Vide Inventory filed in Pro. A. 64/68, exhibit 1).

The duties of the executor are set out in s. 41 of Cap. 189. The funeral and testamentary expenses and all just debts of the deceased must be paid first. The executor shall proceed and have the residue of the estate carefully valued, if it appears necessary so to do, and carry out the provisions of the will according to law, reducing the legacies proportionately, if it appears that the testator has disposed by will more than the disposable portion.

Mr. Solomonides argued that the estate duty has to be paid out of the whole estate as 'the administration costs' and the debts.

In John Eliades v. The Executor of the Will of the deceased N. P. Lanitis and Another, 20 (I) C.L.R. p. 87, the provisions of s. 32 of the Estate Duty Law (s. 31 of the Estate Duty Law 67/62 is identical) and s. 81 (1 ) of the Wills and Succession Law, Cap. 220 of the 1949 Edition of the Statute Laws, now s. 44(1) of the Administration of Estates/Law, Cap. 189, were judicially considered. It was held that the operation of s. 32 (now 31 of Law 67/62) [*1354] cannot be restricted, if the testator elected to keep silent in his will.

In the present case also the estate duty shall be apportioned among the several persons beneficially interested in the property of the deceased in proportion to the value of their interests in the property of such deceased person as provided by s. 31 of the Estate Duty Law 67/62.

Specific Legacies:-

Jessel, M.R., in Bothamley v. Sherson,

44 L.J. Eq. p. 589 said:-

"The first question to consider is, what a specific bequest means ........ In the first place it is a part of the testator's property. A general bequest may or may not be a part of the testator’s property. A man who gives £100 money or £100 stock may not have either - the money or the stock, in which case the testator’s executors must raise the money or buy the stock In the case of a general legacy it has no reference to the actual state of the testator’s property, it being only supposed that the testator has sufficient property which on being realised will procure for the legatee that which is given to him, while in the case of a specific bequest it must be of a part of the testator’s [*1355] property itself. That is the first thing. In the next place, it must be a part emphatically, as distinguished …… from the whole. It must he what has been sometimes called a severed or distinguished part. It must not be the whole, in the meaning of being the totality of the testator's property, or the totality of the general residue of his property after having given legacies out of it. But if it satisfy both conditions, that it is a part of the testator's property itself, and is a part as distinguished from the whole, or from the whole of the residue, then it appears to me to satisfy everything that is required to treat it as a specific legacy".

Lord Selborne, L.C. in his opinion in Robertson v. Broadhent (1883) 8 App. Cas. 812 at p. 815 defined a specific legacy as something "which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed or taken in the state and condition indicated by that description, separates in favour of a particular legatee, from the general mass of his personal estate".

A bequest of money is ordinarily a general legacy. But a legacy of money may be specific, as a bequest of the money in a certain chest, or in such a hand, or secured by certain documents. (Jarman on Wills, 8th Ed. p. 1046). [*1356]

A legacy of "the furniture I shall be possessed of at the date of my death" is a specific legacy. (Steward v. Denton, 4 Dough 219, and Bothamley v. Sherson (supra).

Applying the above to the several bequests in the will under consideration, we find that only the legacies in clauses 2 and 3 are specific. All the other bequests are general legacies.

The general legacies have to be abated first. A careful and accurate valuation of the movables on the date of death to the satisfaction of the Court, and we are not satisfied that the documents before us do not give but a rough estimate, has to be made and filed by the executor before we decide if the specific legacies, as found by us, exceed the disposable portion.

A specific bequest, if vested in possession, and if the

subject matter is income-bearing, entitles the legatee to the income from the testator's death, and also all accretions which/arise after the

death. (Jarman, 8th Ed. p. 1079).

In re Jeffery's Trusts (1866) L.J. N.S. Equ. p. 426, Wood, V.C., held that the legatees of a specific legacy are entitled to the income from the testator's death.

In re Shaw v. Marten

(1901) L.J. N.S. Ch. p.354, Byrn, J., after holding that an appointment, under general powers over two funds, was a specific gift continued:- [*1357]

"I accordingly hold that the income for the first year after the death of the testatrix goes to the appointees".

The legacy to Anna Valdan Malian is a specific legacy and she is entitled to the net income of the house from the date of death of the testatrix.

In view of what we explained our

decision on the questions posed for determination in brevity is:-

(a) Clause (1) is a bequest to the husband of the testatrix of 1/4 of her estate with direction to be taken from the metrita. This is a general legacy.

(b) The answer to this question is in the affirmative. It is a specific legacy and the legatee is entitled to the net income of the house from the death of the testatrix.

(c) All the legacies except those in clauses (2) and (3) are general and have to be abated first or reduced pro rata.

Accurate valuation of the movable property of the deceased at the time of death to be filed by the executor within 15 days from today.

The costs of these proceedings to be paid out of the estate.

Order in terms.