LIM TECK KIM Vs. WEE HUM SOON

JUDGEMENT

(1.) This is an appeal from a decision of the Court of Appeal of the Supreme Court of the Straits Settlement, allowing an appeal from a decision of the Chief Justice. The question involved concerns the true construction of the will of a testator, Khoc Boon Seng, who died on 5 November 1383. To make intelligible the question which were originally raised by this appeal, and those which ultimately survived for decision, it is advisable at once to refer to the provisions of the will.

(2.) By the earlier clauses of his will, which was dated 23 August 1883, the testator appointed executors and trustees, made divers pecuniary bequests and divers specific bequests and devises, directed divers payments out of the income of his residuary estate during the period of 21 years from his death, and directed his trustees to sell such part of his real estate as they might consider unproductive and out of the proceeds to pay his debts and legacies.

(3.) By Cl. 21 the testator devised " all the residue of all my real estate " and bequeathed " all the residue of my personal estate " to the trustees upon the trusts therein mentioned, viz., during the period of 21 years from his death to manage the real estate, and after payment of the outgoings of his real estate, to pay certain monthly sums, as therein mentioned. By Cl. 22, the testator directed that the residue of his personal estate and the balance of the rents and profits of his real estate should, during the period of 21 years from his death be invested as therein mentioned and that after making certain payments as therein mentioned, the trustees should accumulate the unapplied yearly income. The only remaining relevant provisions of the will are Cls. 23 and 24, which run thus : " 23. I direct that during the lifetime of my said sons Khoo Tiong Lip, Khoo Poon Lip Khoo Beow Lip, and Khoo Tek Lip or during the life of the last survivor of them, the land in which I may be buried shall not be sold or mortgaged but that the same shall be kept and managed as a family burial ground. " 24. I direct that after the expiration of the said period on 21 years my trustees or trustee shall call in all investments and shall sell by public auction the residue of my real estate and divide the net proceeds thereof and the money arising from the calling in the said investments amongst my said sons Khoo Tiong Lip, Khoo Poon Lip, Khoo Beow Lip and Khoo Tek Lip and also amongst my hereinafter begotten son or sons in equal shares."