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Alexius Jacob Rebello Vs. Alfred Camillo Rebello - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit No. 2185 of 1946
Judge
Reported inAIR1952Bom203; (1951)53BOMLR908; ILR1952Bom825
ActsSuccession Act, 1925 - Sections 105, 105(1), 118 and 126; Wills Act - Sections 25
AppellantAlexius Jacob Rebello
RespondentAlfred Camillo Rebello
Appellant AdvocateM.P. Laud, ;J.M. Thakore, ;R.M. Kantawalla and ;K.H. Bhabha, Advs.
Respondent AdvocateN.A. Mody, ;K.T. Desai, ;R.L. Dalal and ;N.M. Shah, Advs., Archbishop of Damaun and Goa, Dahir G.A.L.
Excerpt:
indian succession act (xxxix of 1925), sections. 105, 118 - bequest to religious uses--whether such bequest must be of entire property--applicability of section 118--bequest to church dignitary whether a bequest to religious or charitable use--legatee not surviving testator--whether necessary under section 105 to find whether testator intended that lapsed legacy should fall into residue--existence of general residuary clause whether affects construction of particular residuary clause.; there are no words in section 118 of the indian succession act, 1925, to indicate that the bequest must be the bequest of an entire property exclusively for charitable or religious uses. the plain language of the section is that to the extent to which the bequest is for religious or charitable uses, the.....[1] this is a suit for the administration of the estate of one francis anthony cyril rebello, who died at bandra on or about 20-11-1934 leaving a will dated 21-12-1923, by which he appointed his cousin alexius joseph rebello as his sole executor and residuary legatee. the said alexius joseph rebello predeceased the said testator; and on 3 9-1937, defendant 1 was granted letters of administration with the will annexed of the estate of the deceased fransis anthony cyril rebello by the district judge, thana,[2] apart from the question of ascertaining the estate left by the deceased, which is always a matter for the commissioner of this court to determine, certain questions of law have bean raised before me. one of them relates to the interpretation of clause (w) of the will and another to a.....
Judgment:

[1] This is a suit for the administration of the estate of one Francis Anthony Cyril Rebello, who died at Bandra on or about 20-11-1934 leaving a will dated 21-12-1923, by which he appointed his cousin Alexius Joseph Rebello as his sole executor and residuary legatee. The said Alexius Joseph Rebello predeceased the said testator; and on 3 9-1937, defendant 1 was granted letters of administration with the will annexed of the estate of the deceased Fransis Anthony Cyril Rebello by the District Judge, Thana,

[2] Apart from the question of ascertaining the estate left by the deceased, which is always a matter for the Commissioner of this Court to determine, certain questions of law have bean raised before me. One of them relates to the interpretation of clause (w) of the will and another to a legacy under clause (d) of the will to the Bishop of Damaun.

[3] One D. Jose Da Costa Nunes. Archbishop of Goa and Damaun, who is known as the Patriarch of the East Indies, was made a party defendant at his own instance, and he is defendant 25. He claims that ho is entitled to the legacy given under clause (d) of the will. The other parties to the litigation do not admit that defendant 25 is the Bishop of Daman, who is the legatee under clause (d), and put defendant 25 to strict proof of that fact. They further allege that in any event the bequest is bad, firstly because, the will was not registered as required by Section 118, Succession Act, and, secondly, because the bequest is subject to an impossible condition and is, therefore, void under Section 126. Succession Act.

[4] For the purpose of determining whether either of these two contentions is well founded, it is necessary to ascertain who is the legatee under this sub-clause and what the natural of the bequest to him is Sub-clause (d) directs that the property therein mentioned shall be backed over and conveyed:

'To the Bishop of Damaun Dom Sebsstiso Jose Pereira or such other dignitary of the Church as for the time being may be occupying the position and performing the duties of Bishop of Daman for hig own use.' It is, therefore, apparent that the bequest is not to the individual who occupied the position of the Bishop of Damaun but to a dignitary of the Churoh. Then the clause proceeds to say that the property shall be handed over and conveyed to the Bishop:

'On condition and with the obligation attached thereto that the slid B shop of Daman or other dignitary afore said shall pay a sum of Rs. 60,000 (sixty thousand) in equal shares.' to three named individuals, all of whom predeceased the testator. The clause then provides for alternative modes of payment and finally it provides :

'The said sura of Rs. 60,000 (sixty thousand) shall be charged upon the said property in the hands of the Bishop of Damaun or other the dignitary aforesaid.'Now, it is well settled that words expressing a con-dition may sometimes be treated as words creat-ing a charge on the property bequeathed. See Halsbury, vol. 34, para. 412, p. 363. In the case of this particular bequest, since a charge is in terms created on the property bequeathed to the Bishop of Damaun, although the bluest is expressed to he on condition of payment of Rs. 60,000, I must hold that upon a true interpretation of the clause the bequest is subject to a charge, in favour of the three individuals mentioned, for Rs. 60,000. The question then is whether this bequest is a bequest which attracts the application of Section 118, Succession Act. That section provides that no person, who has a nephew or a niece or any nearer relative, shall bequeath any property to religious or charitable uses except by a will executed not less than 12 months before his death and deposited within six months from its execution in some place provided by law for the safe custody of wills. The testator is this case had relatives mentioned in this section; and if this bequest is to a religious or charitable use, it must fail by reason of the fact that the will was not deposited for safe custody within sis months of its execution. The only question, therefore, to consider is whether this is a bequest for a religious or charitable uses.

[5] Now, what is urged by Mr. Bhabha on be-half of defendant 25 is that in order that the Application of Section 118 should be attracted, the bequest must be exclusively for religious or chari-table uses and in part for other uses according to Mr. Bhabha's contention, the whole of the bequest, including the bequest for religious or charitable uses, is good despite the fact that the will may have been executed loss than 12 months prior to the death of the testator and may cot have been deposited as required by the section. I find myself entirely unable to accept this contention. There are no words in Section 118 to indicate that the bequeath of an entire properly exclusively for charitable or religious uses. The plain language of the section, to ray mind, is that to the extent to which the bequest is for religious or charitable uses, the application of the section is attracted despite the fact that the bequest may be of a part of property or some interest in such property, Mr. Bhabba's contention is that since the bequest is subject to a charge for Rs. 60,000, as I have held it is, it is not a bequest of the entire property to the Bishop of Damaun and is therefore not covered by the section. On the interpretation which I have put upon the section, this contention is untenable. In so far as there is any bequest to religious or charitable uses, to that extent the bequest is bad. It may be that the charge may not be affected by this bequest becoming bad, but I have not to determine that question in the present proceedings, because the persons in whose favour, the charge was created died during the life-time of the testator.

[6]]The next question is whether a bequest to a Church dignitary, as I have held this bequest to be, is a bequest to a religious or charitable use. There are appended to Section 118 a number of illustrations of bequests which are void; and one of them is a bequest ''for the benefit of ministers of religion.' The Church dignitary, occupying the position and performing the duties of the Bishop of Datnaun, is obviously a minister for religion, and a bequest to him is a bequest for religious use and attracts the provisions of Section 118 of the Succession act. That being so, the will not having been deposited as required by the said section, the bequest is void. This renders it unnecessary for me to consider whether the bequest is also void by reason of Section 126, Succession Act. That section provides that a bequest upon an impossible condition is void. Mr. Baibha wished to urge that the impossibility of a condition should be determined as on the date of the testator'a will and not as on a subsequent date. That contention it is not necessary for me to consider or dispose of, because, my holding that the bequest is not subject to a condition but only creates a charge would, in any event, take it out of the scope of Section 126.

[7] That brings me to the other question of interpretation raised before me. The testator held certain shares in co-operative housing societies and also had lands in such societies He assigned and conveyed some of those shares and lands to certain individuals by clause (m), (n) and (s), and then by clause (w) he provided as follows :

'To convey and assign all my shares and lands in the Co-operative Societies not specifically hereby assigned, to my nephew Alexius Jacobson of Peter for his own use.'

Now, the legacy under clause (s) of the will lapsed by reason of the fact that the legatee predeceased the testator; and the question that has been raised is whether this legacy, that has lapsed, goes to the nephew Alexius under clause (w) of the will or falls in the general residue there being, as I have already stated, a general residuary legatee, namely Alexius Joseph Rebello. Of course said gentleman also predeceased the testan and if the legacy which had lapsed fell into the general residue, the testator would be held to have died intestate in respect of this property.

[8] Now, Section 105, Sub-section (1), Succession Act, provides as follows :

'If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person.'

This section provides that normally where a legatee predeceases a testator, the legacy lapses and forms part of the residue of the testator's property. This general proposition is made Sub-section to a contrary intention appearing from the will itself. Therefore, what I hive to determine is whether is clause (w) of the will, there is. a residuary bequest of all shares and lands in cooperative societies to the nephew Alexius Jacob; and if there is, whether the will discloses any intention that the legacy that has lapsed should not form part of the residue of the testator's property, viz , shares and lands. Now, the question raised is a somewhat ticklish one because the actual words used namely 'not specifically hereby assigned' have not come up for interpretation before any Courts in a similar clause either in this country or in England.

[9-10] A number of English decisions have been cited at the bar; but before I refer to them, it would be appropriate to state that prior to the Wills Act in England, there were great differences between personal estate and real estate; and while words such as a residue or similar words used in connection with personal estate were interpreted as including everything that had not been effectively bequeathed by the testator, when they were used in relation to real estate, there could be no residue, for under the law as then understood every gift of real estate had to be a specific gift. The position, however, was altered by the Wills Act. Section 25, Wills Act in terms is very similar to Section 151, Succession Act. Keeping in mind this state of the law in England, I will now turn to the cases that have been relied upon before me.

[11] The first of these cases is the case of De Trafford v. Tempest (1G56) 21 Beav 864. The testator left his widow certain chattels and afterwards bequeathed to his aon all his household and other furniture ebc. (p. 561) :

'Not hereinbefore otherwise dispaeod of... which at the time of his decease might happen to be at, in or about his said capital mansion, message or dwelling-house at Trafford Park.'

The Master of the Rolls held that the testator's wife having died during his lifetime, the son took the chattels that were bequeathed to the wife. The sou was held to be a legatee of a particular residue of all the chattels at Trafford Hall not otherwise sufficiently disposed of, the words 'disposed of' in the will having been construed as sufficiently disposed of, which is the same thing as effectively disposed of.

The nest case relied upon is that of Springett v. Jenings, (1871) 6 ch. A 383. A testatrix gave certain lauds in the parish of H to A, B and C, and devised to the plaintiff ''the rest of my freehold hereditaments in the parish of H.' The bequest in favour of A, B and C was held to be void as made on a secret trust for charity. It was held that the lands comprised in the bequest to A, E and C did not go to the plaintiff but were undisposed of and went as on intestacy. Sir W. M. James, Lord Justice, held on an interpretation of the words that the gift of the rest of the land in the Parish of H was not a residuary devise but was the devise of specific property in the Parish of H excluding the property bequeathed to A, B and C. Sir George Mellish, Lord Justice, also came to the same conclusion on a question of interpretation of the will. The Lord Justice observed (p. 336) ;

'It appears to me there ate two questions in this case; first, whether, from the language of the testator, you can infer an intention that if the previous devise did not take effect on account of the secret trust, or from any other reason, these lands should pass to the appellant, I am of the opinion that no such intention can be naturally inferred. First of all there is a specific devise of these lands to the Pipers, not expressing any traut, but, as has been found, on a secret trust for charitable purposes. Then the testatrix devises to the Appellant 'the rest of my freehold hereditaments situated in the Parish of Hawkhurst., Now, as a matter of constraction, it is impossible to infer from those words that she had any intention to pass to the Appellant these particular lands which she bad before devised to the Pipers This appears to me to distinguish the case from those which have been cited respecting what is called a particular residue of personal property, for every one of those cases appears to me to have gone upon this, that from the language of the testator it was to be inferred that he intended the particular property, if the gift of it failed, to pass under the bequest of the particular residue of that description of property '

Then the learned Law Lord referred to certain cases and addressed himself to the nest question as to whether the lands passed to the appellant under Section 25 of the Wille Act. He observed (p 338):

'Now, in order that a residuary gift may, under the 25th section of the Wills Act, include lapsed and void devises, without the will expressing any intention to that effect, I am of opinion that the devise must be a real residuary devise; that is to say, so worded as to apply to all land that is not otherwise disposed of. When a testator has made a gift of that kind then the Act in substance, says it will be presumed from the universality of the gift that, unless he expresses the contrary, he intends it to pass what was specifically devised, if from any cause the specific devise fails; and I must say that the section appears to me to assume that there can be only one residuary devise in the will, for it says, 'shall be included in the residuary devise (it any) contained in such will'. That appears to me to show that the Legislature intended the section to apply only where there was what may be called an universal residuary devise; that is to say, a devise of all the residue of the testator's lands.'

Now, of course, the words that were actuallyconstrued in this case are very near the words that I have to construe in the will before me; and if this case is treated as good law, under the law prevailing in India, I would have to hold that the deviae under clause (w) was only of specific shaves and lands excluding the shares and lands that had been attempted to be bequeathed is the previous clauses. Bat in as far as this case provides any guidance for the interpretation of the will, it proceeds to determine that from the language of the will it could not be said that the testator intended that if the previous devise did not take effect the lands should pass to the appellant. Now, as I read Section 105 of the Indian Succession Act, such an approach is neither permissible nor relevant. It is no doubt true that in considering a will the Court has to place itself in the armchair of the testator and try and give effect to the testator's intention in so far as it may be gathered from the words used in the will; but this is subject to any statutory enactment as regards the interpretation of wills. As I read Section 105, Succession Act, where a legacy lapses by reason of the legatee predeceasing the testator, it automatically forms part of the residue of the testator's property; and it is not necessary to find any words in the will which would indicate that the testator desired or intended that it should fall within the residue. Of course, if the will indicates that the testator intended that the legacy should not lapse or should not fall in the residue, the case is taken out of the scope of Section 105. Therefore, it is in my opinion irrelevant under Section 105, Sub section (1), Succession Act, to try and find out whether the testator intended that the lapsed legacy should fall into the residue. So long as the will does not disclose a contrary intention, it must by reason of Section 105 fall into the residue. With regard to the other principle that Lord Justice Melliab determined, namely, that the residue referred to in Section 25 of the Wills Act, which corresponds to Section 105, Indian Succession Act, must be what may be shortly described as an universal residue, this view has not been upheld by subsequent decisions of English Courts; and as I will point out later on, it is now well recognized that there can be a general residue and a particular residue under the same will. Universality is not an essential ingredient of a residuary devise.

[12] The next case relied upon is the case of Mason, in re; Oggen v. Mason, (1901) 1 ch 619. A testator who possessed several freehold houses at Wimbledon and two freehold houses at King-ston-on Thames, devised one of the houses at Wimbledon to his son in fee; and he devised 'all other my freehold messages and tenements at Wimbledon aforesaid and elsewhere' to other legatees. The devise to the son became void by reason of the fact that he attested the will. It was held that the devise in favour of the other persons was a good residuary deviate under Section 25of the Wills Act and that is included the house, the devise of which in favour of the son had failed. Lord Justice Eigby at p. 626 observed;

'The gift of the residue slmplieiter did not create a true residue, but the gift of that which remained of the fund was as specific as the gift of the first described portion. It was no doubt within the power of a testator to express himself in such language us to show that his intension was that the gift of what he called residue should comprise the specifically appointed part of the fund, if the gift of it failed for any reason, and there are numerous cases in which that took place. But words had to be pointed out which proved that intention; whereas in the case of a true residue no such words were necessary : the word 'residue of itself produced the result.' There are many cases of this kind not necessarily confined to powers of appointment, but extending to a testaor's own property. For instance in De Trafford v. Tempest (1856) 21 Beav 564, a testator gave to his wife certain chatties 'which at the time of his decease might be at or in or about his capital mansion,' and then bequeathed to his son all his household and other furniture, plate, and chattels 'not hereinbefore otherwise disposed' of which at the time of his decease might be at, in, or about his capital mansion. He did not say 'not hereinbefore mentioned,' but 'not hereinbefore disposed of,' which must of course mean, and has always been taken to mean in a similar context, 'not hereinbefore effectually disposed of', making his intention clear that, if the gift to his wife should fail, those oblates which he had attempted to give to her were to be included in the gift to his son.'

The learned Law Lord then referred to the case of Springett v. Jenings 1871 6 oh. A. 333 and at p. 629 observed as follows :

'. . . If the present case were substantially the same as Springett T. Jenings, we should certainly be bound to follow that decision. Melliah L. J., however, while professing to agree with James L. J. made some observations upon Section 25 of the Wills Act. Those observations were absolutely unnecessary for the decision of that case, and if they in any way differed in prluoiple from my own conclusion I should be obliged to say that they were obiter dicta. But I need not do that, for I think that, upon a fair interpretation of what Mellish L. J. said, he must be considered as intending to confine his observations to cases of the same nature as that which was then before him, and not to extend them to cases of an entirety different character. He said that Section 25 appeared to him 'to assume that there can be only one residuary devise in the will', and. no doubt in a very substantial sense that must be so. He was dealing with specific gifts, and he held that you cannot make a residuary gift out of a number of specific gifts, although those specific gifts may in fact together amount to a devise of everything which the testator had. Mellish L. J. said he thought that Section 26 was intended 'to apply only where there was what may be called an universal residuary devise; that is to say, a devalue of a!) the residue of the testator's lands'. There mast be some quality of universality about it. Now, that is just what as I hare already pointed out was requisite to constitute a residuary gift of personality. If the gift was in its nature confined to a particular class of personality it could not be residuary, because a residuary gift must have generality. That, as I apnrehend, is what was meant 'by the use at the word 'universal' in the judgment of Mellish L. J. I do not think he meant that which has been attributed to him. but, if he did. I think he was going outside the case before him, and, without perhaps sufficient argument, stating his view of Section 25 in a way which does not bind this Court.'

[13] Then the learned Law Lord turned to Section 95 and observed (p. 630) :

'... I am clearly of opinion, and for the purpose of this judgment I hold, that a gift in these terms, 'All the residue of my real estate I give as to freeholds to A and as to copyholds to B.,' would be a perfect rasiduary gift-within the meaning of Section 25.'

And again at p. 631 :

'' I read 'the words the residuary devise (if any)' in Section 25 as meaning any residuary devise which may be applicable to the facts of the case.'

[14] This decision was confirmed by the House of Lords it Mason v. Ogden (1903) A. O. I.

[15] The cases relied upon for a contrary construction of the clause before me, apart from Springett v Jenings (1871) 6 Ch. A. 333 which is already referred to, is the case of Patching v. Barnett (1880) 43 L. T 50. The relevant facts are that a testator gave four specific pictures to the National Gallery, and gave the rest of his pictures and all other articles of ornament and virtue 'not therein specifically bequeathed' to his wife; and gave the residue of his personal estate 'not therein specifically bequeathed' on certain trusts. The National Gallery refuted to hare the pictures. Mellins V. C. held that they did not go to the devisee The learned Judge observed :

'This is a mere question of intention. The testator conceived that he had made an effective gift of these four pictures and of the bus; and then he says, 'All the other things of the same disuription I give to my wife, but I do not give her anything herein or by my codicil specifically bequeathed. Now are these pictures specifically bequeathed They are expressly and specifically named; they are given to tin National Gallery. Supposing the testator had said, 'I give all the others except these four pictures' using the very same words and repeating the description of them; who would have said then that they would pass to the wife in my opinion it is just the same as if he had said, 'I bequeath all the pic tares escept those which I give to the National Gallery or which are herein specifically bequeathed,' or as it he had said, 'everything but those I have specifically bequeathed my wife is to take she is not to take those which are specifically bequeathed.' Now are they sceci-fieally bequeathed or not? They are Nobody can doubt that. It never could have entered the teststor's mind that the National Gallery would refuse to accept these pictures. I have no doubt he considered them to be of the highest value, and I understand it is admitted on all hands that they are valuable; they have been refused by the Nitinal Gallery only because they have already some specimens in the gallery by the same masters. An event has happened which the testator never could have contemplated. What he would have said if he had been told that the National Gallery would not receive these pictures is of course a matter of conjecture only; but that he did rot intend to give them to his wife, is, I think sufficiently indicated by the words to which I have referred. Now, with regard to those words which have been referred to, if any cases have any application they are those which have been cited by Mr. Glasse, which are also mentioned in Jarman on Wills. It is, after all, a question of intention. If a testator makes s residuary gift which shows that he does not intend to exclude anything except for the benefit of the person to whom it is given, then the residuary gift will be effectual, and it will carry everything that is not otherwise disposed of, but you oannot include in the residuary gift that which is excepted A man may make a devise of his residuary estate excepting that in a particular district ; he may eseept that estate which he has given to John Smith, or he may except those things which are in a particular dwelling house, and if he eicepts those, who shall say that they pass by the residuary bequest although he thought he had given them specifically? Here it is a gift to the wile of a residue of a particular class ; she is tohave all that is not otherwise disposed of, but in myopinion those piotares are otherwise disposed of.'

[16] Having held this, the learned Judge in dealing with the second residuary bequest, which was in identical terms on certain trusts came to a different conclusion. The learned Judge observed at p. 56 :

'It may seem at first sight rather an inconsistent thing to say that the same words in one part of the will should have one operation, and that they would have another operation in a different part of the will; but I think the inconsistency vanishes when you look at the object of the testator. The testator bequeathed certain pictures to the National Gallery; he then bequeathed Greek bronze head of Soarates to the Britsh Museum ; and he than gate and bequeathed all the rest, residue, and remainder of the pictures, prints, drawings, books, and so forth, which were not by his will or by any codicil apecidically bequeathed, upto his wife absolutely. I have decided that the four pictures given to the National Gallery were exeepted from that bequest, just as if the testator had said ' except the pictures hereinbefore named:' but when the testator comes to dispose of his residuary estate, he meant (I must presume in this case as in every other case where a testator has residuary estate) to dispose of all his property which he had not otherwise disposed of. Now I must look at all the events which have happened and the circumstances which have occurred. This is similar to the case of a specific bequeit of pictures or other articles to a legatee who dies in the lifetime of the testator the result is that they are not excepted under the words 'not herein specifically bequeathed;' in point of fast they cannot be, because there is no legatee to take them if the legatee dies in the lifetime of the testator; it is like the case of an exe-autor or trustee renouncing or absolutely disclaiming ; the result is just the same, because if a man appoints three trustees or executors, and one of them disclaims or renounces, it is just the same as if the disclaiming of renouncing one dies in the lifetime ol the testator ; if a legatee totally disclaims the result is that there is no bequsst, because there cannot be any bequest unless the gift is accepted. '

[17] Now, of course as the learned Judge himself realised, it is difficult to reconcile the decision in the case of the residue in favour of the wife with the decision in the oase of the residue on certains trust where exactly identi&l; words were used. The intention of the testator in a matter of this kind must at all times remain a matter for speculation, What the testator may have done if he had contemplated the possibility of a legacy lapsing is at best a matter for conjecture. But, as I have said before, under Section 105, Succession Act, the Court is not required to make any conjeature. It is not necessary under that section to hold that a testator intendeithat a legacy that had lapsed should fall into the residue. If there is a residuary devise and the legatee predeceases the testator, the lapsed legacy auto-matioilly falls into the residuary devises unless the will discloses a contrary intention. Whether or not there is a goad residuary devise is no doubt a master of construction, depending upon the words used in the will. The cases that I have so far dealt with deal with the words 'dis-posed of' and 'bequeathed' or merely the words 'the rest.' There is no case in which the words 'not specifically assigned' have been interpreted. I find in Ogden v. Mason (1901) 1 Ch. 619, to which I have already referred, that the words 'disposed of' have been distinguished from the word 'mentioned' indicating that if the words of a bequest were 'propertiea not hereinbefore mentioned,' there would not be a true residue, but a particular specific bequest, Now looking to the will before me, the executor has in clause (m) and (n) used the words 'assign and convoy' and in clause (s) only the word 'convey'1 in relation to the shares and lands in Co-operative Societies, and therefore when he uses the words 'convey and assign' in clause (w), I cannot interpret them as Merely mentioned' in the previous parts of the will. In my opinion they are equivalent to the words ' disposed of' which have been always understood in the interpretation of wills to mean effectively disposed of I am, therefore, of opinion that what Alexius Joseph Rebello gets under el. (w) is a particular residue of all shares and lands in the Co operative Societies which have not been effectively disposed of and such a residue shall include any bequest that has lapsed by reason of the legatee having predeceased the testator. Of course I cannot arrive at this conclusion without considering whether the will discloses an intention that the legacy in favour of the legatees who have predeceased the testator should not lapse or fall into the residue. It has bean urged that there is in this will a general residuary clause and that clause provides that the residuary legatee shall be entitled to the whole of the estate of the testator in respect of which he may die intestate because of any rule of law or equity making any bequest hereby given void or because any bequest hereby given is not accepted or because of any other reason and that this residuary clause discloses an intention that the legacy to a predeceased legatee should fall into the general residue and not into the particular residue. Now, as a matter of cons-traction, it has been held that the existence of ft' general residuary clause is by itself not sufficient to affect the construction of a particular residuary clause. See Champney v. Davy (1879) 11 ch. D. 949. The observations of Hall V. C. at p. 958 are :

''I do not think there is any sound distinction between cases of lapsed and cases of invalid disposition, whether the disposition be under a power of appointment, special or general, of in exercise of ownership ; nor do I think that the construction of a particular residuary gift is affected by the presence or absence of a general residuary gift.'

I have, therefore, no hesitation in holding that there is no such intention as would take the case out of the operation of Section 105, Succession Act.

[18] It has been agreed between the parties that if upon a reference to the Commissioner, it is found that the deceased left less than 20 ssares in the Salsetto Catholic Co-operative Society, Limited, the plaintiff and George Rebello would be entitled to an equal moiety of such shares by reason of clause (m) and (w) of the will. I refer the suit to the Commissioner to ascertain the properties left by the deceased which are the subject-matter of issues Nos. 5 and 6, raised on behalf defendant 1.

[19] Defendant 25 shall baar and pay his own costs. Costa of all other parties oat of the estate, those of defendant 1 as between attorney and client.

[20] Order accordingly.


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