1. The petition out of which these applications arise was made to the District Judge, Thana. It was dated November 2, 1929. There is no doubt that it was entirely misconceived, The learned District Judge made an order to which, he considered, the parties had consented. But immediately on this order being made, an application was made to him stating that the executors had not consented, and asking Mm to revise the order. He did so to a certain extent, but not to the full extent.
2. Before me there was no question about the parties agreeing as to what was to be done. A considerable amount of the Court's time has been wasted, What I fail to understand is the basis on which the petition was made. What evidence was placed before the Court to enable it to give directions to the executors in contravention of the directions contained in the will Executors are bound to carry out the direction of the will, It is very unseemly on their part to obtain probate of a will, and then, instead of acting as ministers of the will of the testator, turn against his wishes and speak of them in the manner in which they do in the petition, If they consider themselves so much wiser and better than the pious, though, it may be, old fashioned and ignorant testator, whose property they are ready to deal with, they should have declined to obtain probate of his will and renounced theexecutorship.
3. 'It is clear,' said Lord Eldon in Mucklow v Fuller (1821) Jac. 198, 'that the defendant having proved the will, by so doing, accepted the legacies in trust; he cannot say that he has not accepted the trusts. The will contains express directions what the executors are to do, and if he makes himself an executor he must do all which he is directed to do as executor.' Lord Langdale, presiding, seventeen years later, over the Rolls Court, and referring to an executor, who had acted with ' inadvertence and over good nature,' and who 'unfortunately did not consider that, by proving the will, he had undertaken any duty or undertaken any liability,' said: ' It is important that it should be well understood that no one can safely act in that manner, and that the law will not permit a party to neglect the duty which, by proving the will, he has undertaken. I am of opinion that he became liable for the performance of the trusts, and for any consequences arising from a breach of them': Booth v. Booth (1838) 1 Beav. 128.
4. The bombastic rhetoric in which the petition to the learned Judge was couched, would have been disrespectful, if it had not been so utterly puerile.
5. The only way in which the directions of the testator, speaking with reference to the present ease, may be varied is by the cy pres doctrine. In re Campden Charities (1831) 18 Ch. D. 310 the Master of Rolls, Sir George Jessel, states the doctrine shortly (p. 323):
It is applied where, from lapse of time and change of circumstances, it is no longer possible beneficially to apply the property left by the founder or donor in the exact way in which ha has directed it to be applied, but it can only be applied beneficially to similar purposes by different means.
6. I see no other course open to me than to set aside the order made on this petition, and to ask the District Judge to take the petition back on his file and give an opportunity to the trustees to place their difficulties (if any) before him in accordance with either Section 7 of Act XIV of 1920, or Section 34 of the Indian Trustees Act, whichever (if either) is applicable. The learned District Judge will consider the exact question which is placed before him, and the precise directions that ha is invited to give. He will consider whether the will presents any difficulty in interpretation, whether the directions in the will cannot be carried out as they are laid down. In case he finds that the cy pres doctrine is applicable to any portion of the will, he will no doubt give directions accordingly. ' The Court will deviate from the letter of the settlors intention, so long as it can keep within the spirit of the intention': (Lewin onTrusts, p. 562). For that purpose, he will have to require that there should be proper evidence before him from which the necessary inferences can be drawn which are precedent to the cypres doctrine being brought into operation.
7. In view of the attitude that the executors have taken up, the learned Judge will do well, if, without putting the estate to further costs (which may be unnecessary), he hears the executors themselves in the first instance, whether any such directions will be necessary as will require the giving of notice to outsiders: if he finds that such questions arise in which outsiders are required to be present (but not otherwise), he will see that notice is given to the proper parties before he comes to any decision. If any provisions of the will require the application of the doctrine of cypres, he will take the necessary precautions that the testator's wishes are as nearly as possible given effect to, His final decision must show clearly why (if at all) particular portions of the will become subject to the cypres doctrine, and how that doctrine is given effect to.
8. I should like to draw his attention to the decision in In re Sir Currimbhai Ebrahim, Bart (1919) 12 Bom. L.R. 1040, where Chief Justice Scott dismissed the application to divert the funds, and ordered the trustees to pay costs out of their own pockets. The learned Judge will consider whether in regard to all or any part of the costs of the executors, the decision should be followed. The costs of the petitioners will be dealt with by the District Judge when he passes the final order. The costs of the opponents in C.R.A. No. 260 of 1930 and of the petitioners in C.R.A. No. 272 of 1930 will be payable out of the estate. There has been already too much unnecessary burden on the funds of the estate.