Lawrence Jenkins, K.C.I.E., C.J.
1. This is an appeal from a decision of Batchelor J. There is no dispute as to the facts and the only points for our decision are first whether under the will of Nensey Khairaz the plaintiff is entitled to receive during her life the net income of a sum of Rs. 60,000 and secondly whether she is entitled to claim immediate payment of one-third of the sum of Rs. 60,000. Both points were decided in the plaintiff's favour by the learned Judge.
2. The scheme of the testator's will in the events that happened was that after certain legacies the residue was divided into three shares. Of these two were given to his two sons Mahomedbhai and Kassamali and with these we have no immediate concern. Trusts of the third share were declared in favour of the wife and children of his son Husseinbhai and it is the rights in this share that have been the matter in contest before us.
3. The material directions as to this third share are set forth in Clause 18 of the will.
4. The testator directed a trust deed to be made in respect of this share on the conditions in the will specified. He directed that out of the share a sum of Rs. 60,000 should be specially dealt with as therein mentioned, and provided that 'out of the said income (a sum) to the extent of Rs. 300, namely three hundred, shall be paid every month to Husseinali's wife for (her) household expenses and for the education of (her) children.'
5. The plaintiff Fatmabai was then the wife, and is now the widow, of Husseinali, who died on the 13th of March 1898. Husseinali left two children and no more, a son who died on the 1st of November 1898 less than a year old, and a daughter Shirinbai, who is still a minor, and unmarried.
6. It is argued that in these circumstances Fatmabai is not entitled to the Rs. 300 a month, but only to so much thereof as the trustees may see fit to allow her.
7. But by a consent decree in Suit No. 466 of 1896 it was ordered that the executors of the will of Nensey Khairaz should execute a proper trust deed of the sum of Rs. 60,000 and that the sum be invested as therein mentioned 'and that the net income thereof be paid to....Fatmabai in accordance with the directions in the said will contained.' It was on these materials that Batchelor J. negatived the appellant's contention that Patmabai was only entitled to so much of the income as the trustees might decide to be necessary. I agree with this conclusion, and subject to a qualification I will later mention I hold that Fatmabaiis entitled to the whole income for her life;
8. This brings me to the appellant's second contention that the learned Judge has erred in holding that there was. an intestacy as to the sum of Rs. 60,000 and that the plaintiff is now absolutely entitled to a one-third share therein.
9. The parts of the will that principally govern this question are paras ta, the and da of Clause 18.
10. The arguments before us on both sides have assumed that Husseinali's infant son did not take a vested interest in the Rs. 60,000, and I will deal with the case on that assumption.
11. Now in para da it is provided as follows :-
(da). If Husseinali should not have any son or after having a son should he die without leaving any son, then after deducting the legacy and marriage expenses of his above-mentioned daughters I give the whole of the remaiaing property in equal shares to my son Mahomedbhai and his other younger brothers and in the same manner after the decease of Husseinali and his wife I give the said sum of Rs. 60,000 also to him and them.
12. A question has been raised as to what is. the meaning of the words 'after having a son should he die without leaving any son : 'but having heard whet the Chief Translator has to say. I hold that Batchelor J. has come to the right conclusion as to the meaning of the Gujarati words.
13. It is then clear that neither of the conditions mentioned in the Clause (da) has occurred. But as it is common ground, that no son of Husseinali has lived to attain a vested interest in the Rs. 60,000, who is entitled to that sum subject to Fatmabai's life interest ?
14. Batchelor J. has held that there was an intestacy and that. Mahomedbhai, Cassumbhai, and the plaintiff were each entitled to one-third share. The plaintiffs share was in his opinion derived from her husband Husseinali.
15. The learned Judge points out that though Section 95 of the Indian Succession Act does not apply, this conclusion is required by the decision in Skrymsher v. Northcote (1818) 1 Swans. 566.
16. The attention of the learned Judge was not drawn to the cases of Palmer v. Ainsworth  3 Ch. 369 and Stephenson v. Parker  1 Ch. 408 and before us it has been contended that the decisions in them destroy the ground work of the learned Judge's decision. Is this so?
17. By Palmer v. Ainsworth no doubt Humble v. Shore (1847) 7 Hare 247 was overruled, but that was a very different case from this.
18. The facts in Palmer v. Ainsworth, briefly came to this that a testator after directing a division of his residue into three shares and disposing of two of them absolutely made a partial gift of the third share, and at the same time expressly directed that, on the determination of this partial gift this third share should form part of his residuary estate.
19. It was contended for the testator's next-of-kin that there was an intestacy and for this Humble v. Shore was cited.
20. Stirling J. considered himself bound by that case and held in favour of the next-of-kin. His decision was reversed by the Court of Appeal who overruled Humble v. Shore. The principle on which the decision rests is that the Court in construing a will should give effect to the testator's intention where it is sufficiently expressed to enable the Court to see it. The Court of Appeal did not decide that a residuary gift necessarily catches all parts of the residue not completely disposed of, for Lindley L.J., who delivered the leading judgment, said :
If a testator after bequeathing his residuary estate in shares simply revokes a gift of one of those shares he takes that share out of the residue, and that share being taken out of it, must, unless otherwise disposed of, be treated as undisposed of.
21. Turning then to Stephenson v. Parker what do we find there?
22. A testator divided his residue into three shares and out of one of these shares he gave a legacy of 2250 which lapsed. This legacy of 2250 closely resembles the gift of the Rs. 60,000 out of Husseinali's share and it is significant to notice the contentions there urged. The contest was whether the 2250 passed to the next-of-kin as undisposed of or whether it was carried by the gift of the remaining part of the share out of which it was given.
23. No one suggested that the legatees of the other shares of the residue could have any claim, but that is what is argued in this case.
24. So far, therefore, from Stephenson v. Parker being an authority in the appellant's favour it goes against him, in so far as it shows that in the opinion of all concerned the legatees of the other shares had no right, and that if the lapsed pecuniary legacy did not go to the next-of-kin it was, to use the words of the learned Judge 'carried by the gift of the remaining part of that share.'
25. But by the consent decree of the 22nd March 1897 it has been determined in effect that such remaining part did not pass to the legatees of the other shares, for it was thereby declared that Husseinali upon the true construction of Clause 18 of the will was immediately entitled after the payment and deduction of the legacies therein mentioned, including the sum of Rs. 60,000, to one-third of one third of the residue Of the estate of Nensey Khairaz. The one-third of the residue to which this declaration relates was the 6ne-third out of which the Rs. 60,000 was given.
26. The result then is this : either Skrymsher v. Northcote still stands or it does not. If it does, then Mr. Justice Batchelor's reasons and conclusion are clearly right: if it does not, then his reasons are at fault but his conclusion is right, for Stephenson v. Parker, which is cited as throwing a doubt On Skrymsher v. Northcote, involves the view that the lapsed legacy would go with the share out of which it was carved and it has been declared by the consent decree that upon the true construction of Clause 18 Husseinali was entitled to one-third of that share.
27. Whichever way therefore the case be approached Fatmabai as the heiress of her son on whom Husseinali's interest devolved would be entitled to the one-third share she claims in the balatice of Rs. 60,000.
28. In the view I take it is unnecessary to decide whether Skrymsher v. Northcote has been affected by subsequent decisions.
29. But as Fatmabai thus becomes entitled to one-third of the capital which produces the income awarded to her, it follows that from the time when that third is handed over there must be a proportionate abatement in that income.
30. In the course of the argument here an opinion was intimated that Shirinbai should be separately represented. This has been done and now it is proposed by Counsel representing her and her mother respectively that as between them there should be inserted by consent in the decree a direction that Patmabai undertakes to educate Shirinbai and also to maintain her so long as she lives and whenever she lives with Fatmabai, and also an undertaking by Fatmabai to settle on Shirinbai absolutely one-third of the one-third share of the corpus awarded to Fatmabai by this decree.
31. There must be liberty to apply reserved in respect of these matters.
32. The decree should contain a declaration that the arrangement between Shirinbai and Fatmabai is for the former's benefit.
33. There is a question as to whether the necessary deductions have been made in the decree drawn upon Mr. Justice Batchelor's judgment. To obviate any difficulty on this score the appellate decree should set out in detail the required figures, after making the necessary deductions, both in respect of capital and income. In other respects we confirm the decree with costs.
34. I entirely concur. I only wish to add, that since, in the circumstances of the present case, whether in respect of the Rs. 60,000 there is an intestacy, or it is carried with the gift of that portion of the residue out of which it is taken, the practical result is the same. I have not thought it. necessary to discuss separately the English cases from Skrym-sher v. Northcote to Stephenson v. Parker, bearing on the subject. The less so that, my Lord the Chief Justice has dealt with all that is material in their teaching and has briefly, but, with the greatest clearness, contrasted and explained them.