KAIKUSHRU BEZONJI NANABHOY CAPADIA Vs. SHIRINBAI BEZONI CAPADIA

JUDGEMENT

(1.) The suit to which this appeal relates was brought in order to settle certain questions of construction arising on the will of a wealthy Parsee inhabitant of Bombay, Bezonji Nanabhoy Capadia, who died on the 3rd April, 1906, leaving his wife, two sons, and several daughters surviving him. The will is dated the 10th April, 1905. It is long and elaborately drawn, and contains thirty-three paragraphs.

(2.) The testator appoints executors and trustees. He makes certain specific gifts, he directs his executors, "in the event of" the death of his wife, which must mean "on" the death of his wife (see Penny v. Commissioner for Railways) [1900] A.C. 628 at p. 634 to expend a certain sum of money in providing the expenses of her funeral and the customary rites and ceremonies. He makes certain provisions for a daughter on the occasion of her marriage, and he leaves annuities to be paid to the wife, the daughters, and certain other relatives during the wife s life, and he directs that the residuary income should be divided and paid during his wife s life to his. two sons, with certain provisions in the event of either son s death for the latter s widow and issue. Then come gifts which are of special importance to the present purpose. He devises to his wife during the term of her natural life the house in which he was living called "Capadia House," and he directs his executors during the lifetime of his wife to let another house of his called "Rutton Villa," the rent of Ruttan Villa being to count as part of the residuary income.

(3.) Paragraphs 19, 20, 21 and 25 are those the construction of which is to be determined in this suit. 19. I further direct that after the decease of my said wife Shirinbai or in case she shall predecease me then forthwith after my death nay executors shall stand seised and possessed of the "Capadia House" and the furniture therein and "Rutton Villa" and all my residuary property upon the several trusts in that behalf hereinafter declared that is to say: 20. My trustees shall stand seised of the "Capadia House" upon trust for my said son Jehangir for life and in the event of his death upon trust for his widow and issue in such shares and proportions as the said Jehangir may by his will direct provided that it shall not. be lawful for the said Jehangir to appoint more than one- forth part of the said premises to his widow and subject thereto and in default of any such appointment upon trust for the issue of the said Jehangir such issue to take per stirpes and not per capita and if more than one in the same class equally between them and in default of any such issue and subject to any appointment for his widow as aforesaid upon trust for his brother the said Kaikhushru if then living and failing him upon trust for the right heirs of me the said Bezonji Nanabhoy Capadia as if I the said Bezonji Nanabhoy Capadia had died possessed thereof intestate in equal shares and proportions, but the issue of any heir shall take per stirpes and not pep capita and if more than one in the same class equally between them and excluding from such heirs and such division the widowers of my said daughters and the widows of my said sons.