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 India, who had carried on the business of a stock and exchange broker in that country. His will was dated 16 April 1926. He died on 24 February 1939, leaving him surviving a widow, respondent 2, and two sons, the appellants. The sons were of age at the date of his death but unmarried. On 1 May 1939, probate of the will was granted to respondent 1, the sole executor and trustee of the will. By his will the testator, after certain bequests of the goodwill of his business and of other property not material to the present appeal, proceeded to dispose of his residuary estate by some very elaborate and somewhat confusing clauses. After the usual trusts for conversion, the trustee was directed to stand possessed of the residuary estate upon trust out of the income to pay the testator's widow a monthly sum of Rs. 1500 for her own use and benefit during the term of her natural life. As to the balance of the income the trustee was directed to hold and stand possessed of the same : "Upon trust during the life-time of my said wife to pay the balance of the net income thereof (after payment of the said monthly allowance of Rupees One thousand and five hundred to my said wife) to my children; if more than one in shares such that each male child shall take double the share of each female child, and if there shall be only one such child the whole of such balance of income shall be paid to such one child. And if any child of me shall die in my lifetime or in the life-time of my said wife leaving children or a child him or her surviving the share of the said balance of income which would have been payable to the child so dying had he or she been living, shall during the life-time of my said wife be paid to his or her children, if more than one, in shares such that each male child take double the share of each female child and, if there shall be only one such child the whole of such share of the said balance of income shall be paid to such one child. And if any child of me shall die in the life-time of my said wife without leaving any children or child him or her surviving the share of the said balance of income which would have been payable to the child so dying had he or she been living shall during the life-time of my said wife be paid to such of my children as shall survive the child so dying and the child or children of such of my children as shall have predeceased the child so dying in shares such that males shall in all cases take double the shares of females and the child or children of any such predeceased child shall take only the share his her or their deceased parent would have taken, if living and, if there shall be only one child or one grandchild of me who shall be entitled to the benefit of this provision then the whole of such balance of income shall during the life-time of my said wife be paid to such one child or grandchild as the case may be."

(2.) The testator has been dealing in this clause with an annuity to the widow and the surplus income which will remain after its payment until her death. The testator proceeded to deal with corpus as follows : "I further declare and it is my express desire that the corpus of my residuary estate shall not be divided until the death of my said wife and I will and direct that upon her death my Trustee shall hold and stand possessed of my residuary estate corpus as well as income upon trust to divide the corpus thereof into as many parts or shares as there shall be children of me living at my death or who shall die in my life-time leaving children or a child living at my death and designate the said several shares by the name of the said several children respectively each share designated by the name of a male child, to be double of each share designated by the name of a female child, and if there shall be only one such child then to designate the whole of the said corpus by the name of such one child and to hold and stand possessed of the several shares or the whole of the said corpus, as the case may be, designated by the names or name of any children or child of me who shall be living at my death and shall also survive my said wife upon trust to pay the net income thereof to the respective children or child by whose names or name the same shall be so designated for and during the term of their respective lives and after the death of each such child to hold and stand possessed of the share or the whole of the corpus as the case may be designated by the name of such child upon trust to pay the income thereof, to his or her children until they shall respectively attain the age of 18 years and on their respectively attaining that age upon trust as to the corpus as well as the income thereof for such children absolutely in shares such that each male child shall take double the share of each female child, and if there shall be only one such child then in trust as to the whole for such one child absolutely and if any child of me shall die without leaving any children or child him or her surviving then I will and direct that the share designated by the name of the child so dying shall after the death of such child be held by my Trustee as to the corpus as well as the income thereof upon trust for such of my children as shall survive the child so dying and the child or children of such of my children as shall have predeceased the child so dying absolutely in shares such that males shall in all cases take double the shares of females, and the child or children of any such predeceased child shall take only the share which his, her or their deceased parent would have taken if living and if there shall be only one child or grandchild of me who shall be entitled to the benefit of this provision then as to the whole, in trust for such one child or grandchild as the case may be absolutely."

(3.) The will then continues as follows : "And as to the shares or the whole of the said corpus as the case may be designated by the names or name of any children or child of me who shall die in my life-time leaving children or child living at my death or who shall survive me and shall die in the life-time of my said wife I will and direct that my trustee shall hold and stand possessed of the same upon the same or the like trusts as are hereinbefore declared concerning the shares or the whole of the said corpus as the case may be designated by the names or name of children or a child of me who shall be living at my death and shall also survive my said wife and expressed and intended to take effect after the death of such last mentioned children or child. I further will and direct if and so long as any child of me shall be under the age of 18 years then and in every such case my trustee shall out of the income payable to such child during the life-time of my said wife pay to my said wife the sum of Rs. 500 per month for the maintenance and education of my same child and after the death of my said wife my trustee shall out of the income payable to any such child pay to his or her guardian or guardians the sum of Rs. 500 per month until he or she shall attain the age of 18 years for the maintenance and education of such child and in every case my trustee shall upon any child of me attaining the age of 18 years pay to such child all and any balance of accumulation of income that there might be in his hands payable to such child. And as regards my grandchildren so long as any grandchild of me entitled to any income under this my will shall be under the age of 18 years it shall be lawful for my trustee to pay the whole or any part of such income to the guardian or guardians of such grandchild for his or her maintenance and education I declare that my trustee shall not be bound to see to the application of any moneys which he shall pay for the maintenance and education of my children or grandchildren or any of them under the provisions hereinbefore contained nor shall he be liable for any misapplication thereof."