OFFICIAL TRUSTEE Vs. LCHIPPENDALE

JUDGEMENT

(1.) This suit arises out of a deed of settlement dated 11 June 1928 purporting to create a trust, which deed was executed by the late Thomas Sansoni to whom reference hereafter can conveniently be made as "the settlor". The settlor was twice married. By his first marriage he had two daughters,, the defendant and Miss Phyllis Anne Sansoni, and one son named Paul. The issue by his second marriage was one daughter, Hope Enid, now Mrs. Douglas. The settlor separated from his second wife about 30 years, ago. It has been stated that the second wife died in. July 1939, a few weeks after the death of the settlor. After he had separated from his wife he lived, with a Miss Daisy Mackintosh, who was known, as Mrs. Thomas, and by whom he had three children. Miss Mackintosh lived in Calcutta, and the relationship between her and the settlor continued for about 30 years. For the major portion of this time the settlor stayed each week end with Miss Mackintosh,|but from the year 1935, about the period he retired from his occupation,, until his death in 1939, he lived entirely with Miss Mackintosh. He died intestate on 12 June 1935, at. the age of 74. His death took place at Miss Mackintosh's house, and all the children of his two marriages survived him. The settlor made no provision for the. maintenance of Miss Mackintosh and her children; although he had maintained them entirely during the period of his association with this lady. Some time, before his death he told Miss Mackintosh that he intended to make, or he had made, a deed by which he would leave her with provision for the future. He kept his documents in a despatch box, and upon his death and when the box was opened, a typed copy of the deed was found, amongst other papers, upon which he had written in pencil "On my death body to be cremated."

(2.) The settlor was over 50 years in the employment of the India General Navigation & Railway Co., Ltd., hereinafter called "the company." This Company has a Provident Fund Institution (which I will conveniently call "the Fund") of which the members are the servants of the company. The settlor was a member, and had been a member, for more than 19 years prior to the year 1928. Upon his retirement from ser vice with the company in 1935 he was paid a sum of Rs. 72,468, being the amount due to him and as credited in his account in the books of the Fund. Of this sum, Rs. 10,865 was the amount of his own contributions, the balance being represented by contributions made by the company, profits and interest. It is perhaps convenient to record that on 11 June 1928, the date of the deed, to which reference will be made later, the amount credited in his favour was a sum of Rs. 35,165, of which Rs. 9828 represented his own contribution, Rs. 7752 the amount of the company's contribution, of the balance of about Rs. 17,500, the profits and interest upon the two contributions.

(3.) Between the dates when he received the Provident Fund monies and his death the settlor purchased securities of the total value of about Rs. 53,000. When he died he also had a credit bank balance of Rs. 708. It is common ground that these investments and the bank balance represented part of the monies which were paid to him by the fund, and it would seem he had spent the balance. It is now convenient to refer to the deed of 11 June 1928. This is made between the settlor (who therein is so described) on the one part, and the settlor again and one Nelson Mayhew Vaughan (therein des-cribed as the trustees). The deed recites that the settlor was desirous of settling the amount to which he would be entitled as a member of the Provident Fund of the Company, which amount he estimated at Rupees 33,000 or thereabouts, and the household furniture belonging to him at his death, which he valued at Rs. 1000 and all additions according to the Fund or which might otherwise become payable to him by the Company upon the trusts thereinafter declared. It was witnessed that in consideration of natural love and affection and other good causes and consideration the settlor did thereby assign and transfer unto the trustees all that sum of Rs. 33,000 or thereabouts and any other monies to which on his retirement from the service of company he might become entitled as a subscriber or member of the Fund and also household furniture then or thereafter belonging to him. And all the estate, right, title, interest, claim and demand whatsoever of the settlor into and upon the said monies and furniture to have and to hold the same unto the trustees upon the trusts thereinafter declared, namely: (1) The trustees should collect and receive the said Provident Fund money and any additions or accretions thereto; (2) the trustees should pay the interest or income thereof to the settlor and should allow him the undisturbed free use of the furniture during his life; (3) after his death and after payment of his funeral expenses and debts, pay out of the capital and income of the trust monies Rs. 18,000 to Miss Mackintosh absolutely, and the balance of the capital and income to the setalor's daughter, Miss Phyllis Anne Sansoni and make over the furniture to her absolutely. The deed also provided that it should be lawful for the settlor at all times by any deed to alter or revoke all or any of the trusts declared by those presents and to declare any new or other trusts.