RICHARD MICALLEF Vs. GIUSEPPE BUGEJA BONNICI

JUDGEMENT

(1.) This is an appeal from a decree, dated 2 November, 1934, of the Court of Appeal at Malta, which set aside a decree, dated 10 June 1933, of His Majesty's Civil Court (First Hall), Malta. The solution of the matters in dispute depends upon the true construction of article 17 of the will (dated 24 June 1890) of a testator, Marchese Vincenzo Bugeja, who died on 6 September 1890. There are two questions involved. The first is whether the respondent only acquired an interest in an annuity bequeathed by article 17 if and when he attained the age of 21 years, with the result that he was only entitled to participate as from the happening of that event in the current annual amount of the annuity or in the current annual income of the fund appropriated to meet the annuity; or whether (as he contends) he became entitled on attaining the age of 21 years not only to his participation but also to receive the accumulations of one-third of the annual amount of the annuity or of the income of the appropriated fund which had accrued since the death of the testator. The second question relates to a deficiency in the income of the appropriated fund, and can best be considered and disposed of separately.

(2.) There are certain facts which must first be stated. The testator had no children; but when he made his will, and when he died, there were living: (1) his nephew Carlo (a son of the testator's brother Michele and his wife Ursulla), (2) a great-nephew Eduardo (son of Carlo), (3) a great, niece Maria (daughter of Carlo), and (4) a great-nephew Giuseppe (son of his deceased nephew Salvatore, who was another child of Michele and Ursulla). The respondent (whose name is also Giuseppe and who is the third child of Carlo) was not born until the year 1899, some nine years after the testator's death. About ten years before his death the testator had founded a charitable institution called " Conservatorio Vincenzo Bugeja", which, as will appear, was by his will constituted his universal heir. He left behind him a very large estate of some ?250.000 in value. By his will (article 10) he bequeathed to his nephew Carlo the usufruct of certain properties described in two annexed documents marked respectively A and C. On the death of Carlo he directed that his great nephew Giuseppe (the son of Salvatore) should succeed to the usufruct of one moiety of those properties. He bequeathed (article 11) the ownership of the same properties as to one moiety to the children born and that might yet be born of the said Giuseppe, and as to the other moiety to the children born and that might yet be born of Carlo; and he stated that "the present legacy is made subject by me to the following terms and conditions ", one of which was that the children should be living at the death of their respective fathers, and another of which was a condition relating to their educational attainments. The portion of any child who did not fulfil the conditions was not to accrue to the others, or to devolve on any one except the testator's universal heir. If any of the children should after receiving their legacy die without leaving any descendants and without having by deed or will disposed of it, the whole or the part undisposed of was to devolve on the testator's universal heir. By articles 14 and 15 the testator bequeathed to the children born and yet to be born of Carlo, a debt due to the testator from Carlo, " subject to the condition that the legatees shall complete the 18 year of age". The portion of a legatee who did not fulfil the condition was to devolve on the testator's universal heir. By article 16 the testator bequeathed specified Government securities of the value of ?100,000 to the future issue of the said Giuseppe, and to the future issue of the children already born and that should be born, before the testator's death, of Carlo. This legacy he stated "is made subject by me to the following terms and conditions ". One of the conditions specified ran thus:

(3.) That none of the legatees may acquire the legacy except when he or she has completed and if he or she shall have completed 25 years of age; and if being a male he shall have obtained a Doctor's degree and, being a female, she shall have received an education, as described. The provisions of article 17 must now be set out in full. It runs thus: I, Vinccnzo Bugeja, bequeath to the said Guiseppe Bugeja an annuity during his life-time of Two Hundred and Nineteen Pounds, Thirteen Shillings and Ten Pence (? 219-13-10), and I bequeath to the children born and that may yet be born of the said Carlo Bugeja an annuity during their life-time of Two Hundred and Thirteen Pounds, Five Shillings and One Penny (?213-5-1).