Legacy is transferred upon death of testator

Mr Justice Mark Chetcuti decided on 12 November 2013 that a legatee has a right to sell his legacy before he is put in possession, because he becomes owner of the property left as a legacy upon the death of the testator.

The court judgement was delivered in the case Giovanna Farrugia and other vs Carmelo Farrugia. 

In their writ of summons Giovanna Farrugia and her children claimed that Caterina and her brother Giuseppe Camilleri held in possession of three-quarters of a field in Zurrieq. According to the Giuseppe Camilleri's will of 24 April 1957, he left as a legacy equally to the Farrugia brothers and sisters Dun Paolo, Anna, Rosaria, Joseph and Carmelo. This legacy was subject to the usufruct in favour of Caterina Camilleri. Dun Poalo and Joseph Farrugia died and was inherited by his other brothers and sisters. Rosaria sold her part of the legacy to her sisters Giovanna and Anna on 4 March 1987. The plaintiffs on 19 January 1992, bought all her shares of the field from Anna. The adjacent house in Zurrieq was never divided and the defendant had acquired Caterina Camilleri's share of the property. Upon instituting the action, the plaintiffs possessed 3/8 of the field, while the defendant Carmelo Farrugia possessed 5/8. The plaintiffs do not want to continue with having the property in common and would like to divide it. In Giuseppe Camilleri's will he nominated the defendant to assign parts of the field to the rest of the legatees, but instead he occupied the field. The plaintiffs asked the court to partition the field.

The defendant pleaded that the plaintiffs have not been formally put in possession of their legacies, that the action is time-barred and that it is not true that they possess 3/8 of the field.

On 29 April 2003, the Court in a separate judgement turned down the plea that the action was time-barred, since as long as the field was in the possession of the defendant, he had failed to exercise his duty to assign portions of the field to the different legatees. According to Article 2118 of the Civil Code, somebody holding property on behalf of somebody else cannot claim that the action to time barred.

Mr Justice Chetcuti, then examined the evidence in that there was no contestation of the fact that the father of the plaintiffs, Joseph Farrugia and the defendants had a right to 1/5 each of the field. This was originally owned equally by Giuseppe and his sister Caterina, therefore the legacy to the Farrugia family was of half this field, therefore, each of the brothers and sisters owned 1/10 of this field. 

The plaintiffs before instituting this action, had purchased the other shares of the field that belonged to Giuseppe Camilleri. This was done when Giovanna and Anna Farrugia and had purchased Roasaria's share. The plaintiffs purchased Anna's shares. This was legally possible because our Courts in previous judgements have held that the legatee becomes owner of the property left as a legacy upon the death of the testator. In fact upon death of the testator, the legatee assumes full responsibility of that property. In fact a legatee is compared to a creditor of the inheritance, if he is not given possession of the property. As such he can transfer that credit to third parties.

The defendant has 1/5 of the field. He also acquired one half of the field by acquisitive prescription of Caterina Camilleri's shares, because held had unopposed possession for 37 years. Therefore, today he holds a 6/10 share. 

The defendant held that the plaintiffs could not ask for a division, but merely to be placed in possession as provided in article 726 of the Civil Code. The Court held that although the legatee becomes owner of the legacy immediately upon death of the testator, this has to be done formally, because if not the ownership would be abstract and would not have a right to exercise his property rights. The fact that the defendant was nominated to apportion the property, was merely an added benefit, and not a condition of the legacy. 

In view of this the court agreed with the defendant that the plaintiffs did not have 3/8, but had 3/10 of the field, but all the same ordered field be sold by court order at a price of €490,000 to be divided according to the shares of each of the parties.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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