SOPHER Vs. ADMINISTRATOR GENERAL OF BENGAL

JUDGEMENT

(1.) THE questions raised in this appeal relate to the construction of the will of Edward Abraham Sopher, a resident in Calcutta, domiciled in British Indisf who had carried on the business of a stock and exchange broker in that country.

(2.) HIS will was dated April 16, 1926. He died on February 24, 1939, leaving him. surviving a widow, respondent No. 2, and two sons, the appellants, The sons were of age at the date of his death but unmarried. On May 1, 19S9, probate of the will was granted to respondent No. 1 the sole executor and trustee of the will.

(3.) TWO sections of the Indian Succession Act, 1925, on which the case mainly depends, must now be stated. 113. Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. ILLUSTRATION. (i) Property is bequeathed to A for his life, and after his death to the eldest son for life, and after the death of the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to As eldest son is a bequest to a person not in existence at the testator's death. It is not a bequest of the whole interest that remains to the testator. The bequest to As eldest son for his life is void. (iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life and may be divisible among her children after Her death. A has no daughters living at the time of the testator's death, but has daughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her life ; that is to say, a bequest to a person; not in existence at the time of the testator's death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void. (iv) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her children after her death. B has no daughters living at the time of the testator's death. In this case the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to persons not yet born, of a life interest in the fund, that; is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void. The second illustration is omitted as not being material. 120. (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens. (2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible. (3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent;. Exception. Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent.