(1.) This is an appeal from a judgment of the Full Court of the Supreme Court of Nigeria in an action in which the appellants were the defendants and the respondent was the plaintiff. One of the appellants is now dead and the appeal has been prosecuted by the surviving defendant. The action was brought by the respondent as devisee of certain properties for an account of the rents collected by the appellants in respect of these properties from the death of the testator until the date when the respondent attained the age of 25 years. The question for the determination of this Board is whether the devise to the respondent by the testator's will vested at the death of the testator subject to being divested if the respondent did not attain 25 or was contingent on the respondent attaining the age of 25. The full Court, following the judgment of the learned Judge in the Supreme Court of Nigeria, has decided in favour of the former view, and it is not in dispute that if that decision was correct the order for an account of rents collected by the appellants in respect of the real properties in question must stand.
(2.) The will is dated 2 November, 1917. The testator desired, as appears from the instrument, to provide for his wife, a number of collateral relatives, and in particular, for a reputed son, the respondent, and a reputed daughter, Phyllis Alaba Shanu. The two children on that date were infants. The respondent was aged 12 and did not attain the age of 25 until 1930. The testator possessed a considerable number of freehold pieces of land and houses situate in or near Lagos in the Colony of Nigeria, where he had carried on business as a trader, and he appears also to have possessed personal estate of substantial value. By his will, which is drawn up in clauses in English form, after revoking all previous wills and declaring that to be his last will, he appointed the appellants and one Foresythe (since deceased) to be his executors and trustees. By Cl. 2 in the will he gave and bequeathed some 21 legacies, and it should be noted that a pecuniary legacy of ?400 bequeathed to his daughter Phyllis was to be deposited for her in a Lagos bank, and that the rent of & house known as 65, Campbell Street, Lagos, was to be paid to her during the period of two years immediately following her marriage as pocket money. To his son the respondent the testator gave a legacy of ?1000 to be deposited for him in the same bank ?until he attains the age of 25 years." It may be observed that, this gift was beyond doubt a vested gift though the testator attempted to postpone the enjoyment of it until the respondent should attain the age of 25. By Cl. 3 the testator devised certain land and houses in trust for his wife for the term of her natural life and from and after her death in trust for his son the respondent and his heirs. By Cl 5 he devised another piece of land to his daughter Phyllis and her heirs and then follows the sentence : "This devise shall take effect two years after the marriage of my said daughter." Cl. 6, which is the clause raising the present question, is in these terms : 6. I devise unto my son Evan Adeleye Shanu and his heirs (a) all that piece of land situate at Oil Mill Street aforesaid together with the house, buildings, and premises erected thereon and known as 'Shanuville,' 5 Oil Mill Street. And also (b) all that piece of land situate at Campbell Street aforesaid together with the house, buildings and premises erected thereon being a portion of the property known as 'Shanu Terrace' 61 and 63 Campbell Street aforesaid. And also (c) all that piece of land situate at Massey Street in the town of Lagos aforesaid together with the house, buildings and premises erected thereon and known as my business place, 39 Massey Street aforesaid. And also (d) all those three pieces of land situate at Massey Street aforesaid opposite to my said business place together with the house, buildings and premises erected thereon and known as 22 Massey Street. And also (e) my piece of land situate at Ebute Metta, a suburb of the town of Lagos aforesaid, together with the house buildings and premises erected thereon.
(3.) These devises shall take effect upon my said son attaining the age of 25 years. By Cl. 8 the testator disposes of the residue of his personal estate. The trustees are to stand possessed thereof upon trust to defray the cost of the maintenance and education and of the marriage of his daughter Phyllis and the cost of the maintenance and education of his son (the respondent). By Cl. 9 he directs that his son shall attend at a certain grammar school till he attains the highest form therein, after which his trustees are to give him a four years' course of further education and every facility to qualify in such trade or profession as his son may show an aptitude for. By Cl. 10 the testator directs that a cousin, Emanuel Agemo Olajonlu, shall occupy and reside in his house at 39 Massey Street, rent free until his son (the respondent) shall attain the age of 25 years, and that his trustees shall let the shop attached to the said 39, Massey Street, at such rent and subject to such covenants as they shall think fit. The house, 39, Massey Street, is one of the parcels of of real estate devised to the testator's son. The will contains no gift of residue of real estate.