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Mahadeo Ramchandra Vs. Damodar Vishwanath and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberAppeal No. 295 of 1954
Judge
Reported inAIR1957Bom218; (1957)59BOMLR478; ILR1958Bom21
ActsTrusts Act, 1882 - Sections 3; Succession Act, 1925 - Sections 89
AppellantMahadeo Ramchandra
RespondentDamodar Vishwanath and anr.
Appellant AdvocateK.B. Sukhthankar, Adv.
Respondent AdvocateV.M. Tarkunde, Adv.
Excerpt:
indian succession act (xxxix of 1925), section 89 - direction by testator to dispose of his residuary estate, according to discretion of executor and as he deemed fit--whether such direction defective for uncertainty and void--dispositions made by executor in pursuance of such power whether valid--distinction between trusts and powers.;a testator by his will disposed of the residue of his estate in the following manner: 'the executor...should dispose of all my other estate and money according to his discretion (by giving the same) to an institution or institutions of utility, as he may deem fit'. by his codicil to the will he provided: 'the further power which i hereby give to [my executor] in addition to the power given by me to [him] in the first will is that [he] should spend all my.....vyas, j. 1. this is an appeal by plaintiff no. 2 for himself and as an heir of plaintiff no. 1 and ft arises out of a judgment and decree passed by the learnedassistant judge. north satara, in civil appeal no. 368 of 1951 which in its turn arose out of civil suit no 228 of 1949 on the file of the court of third joint civil judge, satara.2. the abovementioned suit no. 228 of 1949 was filed by two plaintiffs ramchandra and mahadev who were father and son. it was filed for the recovery of certain documents or scripts which were specified in the schedule annexed to the plaint. defendant no. 1 is mr. damodar vishwanath gokhale, who is a journalist of poona, and defendant no. 2 is a limited company of the name of 'western india trustee and executor company ltd.' with its head office at satara......
Judgment:

Vyas, J.

1. This is an appeal by plaintiff No. 2 for himself and as an heir of plaintiff No. 1 and ft arises out of a judgment and decree passed by the learnedAssistant Judge. North Satara, in Civil Appeal No. 368 of 1951 which in its turn arose out of civil suit No 228 of 1949 on the file of the Court of Third Joint Civil Judge, Satara.

2. The abovementioned suit No. 228 of 1949 was filed by two plaintiffs Ramchandra and Mahadev who were father and son. It was filed for the recovery of certain documents or scripts which were specified in the schedule annexed to the plaint. Defendant No. 1 is Mr. Damodar Vishwanath Gokhale, who is a journalist of Poona, and defendant No. 2 is a limited company of the name of 'Western India Trustee and Executor Company Ltd.' with its head office at Satara. It may be noted that after the judgment in the suit was pronounced by the trial Court, plaintiff No. 1 Ramchandra died. Plaintiff No. 2 is his heir and legal representative and the present appeal is prosecuted by plaintiff No. 2 both for himself and as an heir and legal representative of plaintiff No. 1.

3. One Abajee Washikar had two sons Ram chandra and Gopal Ramchandra had two sons Ganesh and Mahadev. Mahadev is plaintiff No. 2. Gopal died several years ago. During his life-time Gopal had given away his share in the property to his nephew Ganesh. Ganesh was a medical man and he was a licentiate of the College of Physicians and Surgeons. Bombay. Ganesh put in several years service in Africa whereafter ho returned to India and took up residence in Poona. During the declining years of his life. Ganesh was in the service of the Poona Municipality. On the 6-8-1942 Ganesh made a will and appointed the first defendant Damodar Vishwanath Gokhale as the sole executor under the will. On the 10-84042, Ganesh executed a codicil making certain changes in the will. Ten days thereafter, on the 20-8-1942. Ganesh died at Poona. On the 4-7-1945, the first defendant obtained a probate of the will of Ganesh from the District Court at Poona. After obtaining the probate, the first defendant administered the properly of Ganesh and gave certain legacies to the legatees mentioned in the will. One of the legatees was the first plaintiff Ramchandra himself. Under the will a bequest of a house and certain cash was made in favour of the first plaintiff. That bequest was carried out by the first defendant after obtaining the probate of the will. The testator (Ganesh) by his will made a certain disposition of his residuary estate and it is that disposition which has become the subject-matter of the present litigation. Before the suit was filed by the plaintiffs, the first defendant executed a deed of trust in respect of the residuary estate of Ganesh, and the trust was made in favour of the second defendant. By this deed of trust, the first defendant handed over to the second defendant a Government promissory note of the value of Rs. 10,000 /- and cash amounting to Rs. 1000/-. These were handed over to the second defendant for being passed on to the Poona University for establishing a scholarship to be given to a student who would head the list of successful candidates at the second M.B.B.S. examination of the University of Poona. The first defendant also handed over certain documents and scripts of the value of Rs. 1225/- to the second defendant, so that the interest on the abovementioned amount might be handed over every year to an institution of the name of Anath Vidyarthi Graha for being spent annually on the Shradh of the testator Ganesh. After the property of the testator was disposed of in the manner stated above by the first defendant, a notice was given by the second plaintiff on 16-5-1949 to the second defendant, calling upon the second defendant to refrain from dealing with the funds which were handed over to it by the firstdefendant, The second defendant was asked to hand over the abovementioned amounts to the second plaintiff, as the contention of the plaintiff was that the disposition of the residuary estate of the testator as made by the testator by his will, was void for uncertainty and it offended against the 'principles of justice, equity and good conscience'. After giving the notice, the present suit was filed by the plaintiffs on the 6th June 1949 asking for the return of the documents and scripts stated in the schedule to the plaint from the second defendant. It is to be noted that in the plaint the only relief which was sought by the plaintiffs was in respect of the documents and scripts mentioned in the schedule annexed to the plaint.

4. The suit was resisted by the defendants principally upon the contention that the disposition of the residuary estate made by the testator by his will was not void for any reason, that it was a good disposition and that, therefore, the second defendant was validly in possession of the documents and scripts, of which the possession was demanded by the plaintiffs.

5. The learned trial Judge observed in paragraph 27 of his judgment that 'the bequests of residue under the will and codicil' were void under Section 89 of the Indian Succession Act and accordingly he passed a decree directing that the plaintiffs do recover possession of the documents and scripts mentioned at serial Nos. 2 to 6 in the schedule annexed to the plaint. The learned Judge ordered that each party should bear its costs of the suit. Prom this judgment and decree, defendant No a appealed to the District Court of North Satara and the learned Assistant Judge who decided the appeal held that the disposition of his residuary estate by the testator by his will was not void for uncertainty and that, therefore, the plaintiff was not entitled to ask for possession of the documents and scripts which were handed over by the first defendant to the second defendant. Consistently with this view of the matter which the learned appellate Judge took, he allowed the appeal of the second defendant and directed the suit to be dismissed. It is from this judgment and decree of the learned appellate Judge that plaintiff No 2. both for himself and as an heir of plaintiff No 1, has filed this appeal.

6. The point which arises for our decision in this appeal is a narrow one though an interesting one and the point is whether the disposition of his residuary estate as made by the testator Ganesh by his will was defective for uncertainty. Mr. Sukhthankar, the learned Advocate appearing for the appellant, has taken us through the material portions of the will and the codicil and his contention is that the disposition of his residuary estate as made by the testator was couched in language which was vague, indefinite and uncertain and that, therefore, the disposition was defective and void. Now, the material words in the will are:

^^;k f'kaok; ekb;k loZ brj bLVsVhph o iS'kkph

O;oLFkk oqbZyps ,D>hD;wVj Eg.kwu Jh-nkeksnj fo'oukFk

xk[kys ;kauha R;kauk ;ksXa; okVsy R;krTgsus miz;qa laLFksl

o laLFkkal R;kaP;k bpNsla ;sbZy R;ki)rhausa djkoh- **

We have got an official translation of this statement contained in the will and it may be noted that the correctness of the official translation is accepted by both the learned Advocates Messrs. Sukhthankar and Tarkunde appearing for the appellant and the respondents respectively. The official translation is :

'Shri Damodar Vishwanath Gokhale as the executor of the will should dispose of all my other estate and money according to his discretion (by giving the same) to an institution or institutions of utility, as he may deem fit.'

Then there is a codicil to the will which, as I have mentioned above, was executed by Ganesh on the 10th August 1943 and the relevant provisions in the codicil were :

^^ikfgY;k O;oLFkk i=kar Jh- xk[kys ;kuka HkhfnysY;k

vf/kdkjkis{kk vk.k[kh tknk vf/kdkj Jh- nk-oh- xk[kys

;kuka nsr vkgs] rk vlk] ek>h f'kYyd jksfgysyh loZ bLVsV&

?k iSlk Jh- nk- oh- xk[kys ;kuha R;kuk ;kX;vkVsy R;k

rTgsus laLFksl fdaok laLFkkal vFkok R;kukatsa mi;q okVsy

R;k i)rhusa [kpZ djkok- ;k ckcr R;kapk fu.kZ;v[ksjpk

jgkok- **

Again, we have got the official translation of this statement, which is agreed to toe a correct translation toy both the learned Advocates Messrs. Sukhtankar and Tarkunde and the official translation is:

'The further power which I hereby give to Shri D.V. Gokhale, to addition to the power given by me to Shri Gokhale in the first will is that Shri D.V. Gokhale should spend all my residuary estate and money in such manner as he may deem fit (by giving the same to an institution or institutions or in any other manner he may deem useful). His decision in that behalf shall be final.'

Now, the contention of Mr. Sukhthankar which he has strenuously pressed before us is that the disposition of his residuary estate by Ganesh, which was couched in the language stated above, was defective by reason of uncertainty. Mr. Sukhthankar says that the uncertainty about the disposition arose in this way. So far as the statements in the will were concerned, the first defendant was called upon to dispose of the residuary estate of the testator in favour of an institution or institutions of utility as the first defendant might deem fit Mr. Sukhthankar's contention is that what the first defendant might deem fit or might not deem fit was an uncertainty. The words used in the will were:

^^R;kaP;k bPNsl ;sbZy R;k i)rhusa djkoh **

Again Mr. Sukhthankar's contention is that it was uncertain as to how the first defendant might wish to proceed in the matter of disposition of the residuary estate of the testator. Then again, says Mr. Sukhthankar, it was a matter of uncertainty and indefiniteness as to which institution or institutions might be considered fit for the purpose by the first defendant. It was also a matter of uncertainty whether the institutions which the first defendant might consider to be institutions of utility might really be the institutions of utility or not. Mr. Sukhthankar says that the institutions might be of various kinds and they might be located at various places. An institution might be located at Poona or near about Poona or farther away from Poona. An institution might he a charitable institution or a religious institution or an educational institution, and if it might be an educational institution, the kind of education which may be imparted there might differ with different institutions. In some institutions, physical training might be imparted. In others, other kinds of training might be imparted and so on. It is in this manner, says Mr. Sukhthankar, that the directions given by the testator to the first defendant in the matter of disposition of his residuary estate werecouched in language which was uncertain and therefore, it was impossible for the Court to control the disposition.

7. As I have mentioned above, the learned trial Judge took the view which Mr. Sukhthankar is asking us to take. In the view of the learned Judge, the language, to which I have just referred, both in the will and the codicil did not attain requisite precision and vitiated the disposition. The learned Assistant Judge on appeal took a different view and the reasons which he advanced for taking a different view were these. The learned Assistant Judge attached considerable importance to the fact that the words ' ^^laLFksl fdaok laLFkkal vFkok R;kuk tsamai;q okVsy R;k i)rhusa ** meaning 'institution or institutions or in any other manner he may deem useful' were put in parenthesis in the codicil. In the view of the learned Judge, this circumstance of the above words being put in brackets suggested that the testator did not give an imperative direction to the first defendant to utilise his residuary estate for the purpose of the benefit of an institution or institutions. The learned Judge thought that the reference to an institution or institutions in parenthesis was merely illustrative and that what the testator really did was that a power was given by him to the first defendant to dispose of the residue of his estate in any manner that the first defendant might deem fit and proper, and the discretion of the first defendant in that connection was to be final. Upon this view of the matter, the learned Assistant Judge came to the conclusion that there was no uncertainty about the disposition of his residuary estate which Ganesh made by his will.

8. Mr. Sukhthankar says that the deceased by giving a direction in his will regarding disposition of his residuary estate made a trust of that estate, but the words which he used in giving the direction being vague and lacking in precision, the trust was void for uncertainty. Mr. Tarkunde on the other hand says that this is not the case of a trust, but it is a power as distinguished from trust, and therefore no question arises of the trust being vitiated by the uncertainty of the testator's direction. Mr. Sukhthankar relies on the cases of Attorney General of New Zealand v. New Zealand Insurance Co. Ltd. , and Tri-kundas Damodhar v. Haridas. ILR 31 Bom 583, while Mr. Tarkunde has referred us to the cases of Shirinbai v. Ratanbai 48 IA 69 : AIR 1921 PC 47 and Gibbs v. Rumsey (1813) 2 V B. 204. Before dealing with these cases, it is necessary to emphasise that there is a fundamental distinction between trusts and powers. A trust is an obligation annexed to ownership. A trustee holds property subject to an obligation which the testator has imposed upon him. The obligation follows from a peremptory direction of the testator that the trustee must dispose of his estate in certain definite ways or upon certain specified or ascertained or ascertain able objects. A trustee has no freedom of choice as to how he should distribute the testators estate. He is bound to carry out the injunction given by the testator and his conduct in the matter of disposition of the estate must strictly conform to that injunction. He must act within the sphere of the testator's direction and must not deviate from it or modify it. In the case of power, the position is quite different. There is no direction by the testator. There is only his wish or recommendation, and the wish is that the donee of the power would have absolute discretion and free unfettered choice as to theobjects, institutions or persons amongst whom the estate of the testator might be distributed. As Chief Justice Wilmot said in Wilnot, 23 :

'Powers are never imperative; they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party entrusted'.

The test is whether what is expressed by the testator in his direction is intended to control the conduct of the person to whom it is addressed or whether it is merely his wish or indication of his mind that the person appointed by him should use his own discretion and act as he thought best. In the former case, it is a trust, whereas in the latter case is a power. Powers may be general or limited and so far as is material to the present case, it may be stated, in the words of Farwell, that general powers are such as the donee can exercise in favour of such person or persons as he pleases, including himself. In order to consider whether the testator created a trust or gave power, the will must be construed as a whole and the intention of the testator must be gathered. In Lambe v. Eames (1871) 6 Ch. A. 597, a testator had given his estate to his widow ' to be at her disposal in any way she may think best for the benefit of herself and family'. It was held that the words 'for the benefit of herself and family' imposed no trust on the widow in favour of the family as the intention of the testator was to give power to his widow to act in any way she thought best similar view was taken in In re Hutchinson and Tenant (1878) 8 Ch. D. 540. It is thus clear that there is a distinction which the law has always recognised between trusts and powers, and where it is a case of power there can be no question of the testator's direction being defective for uncertainty.

9. Bearing this distinction between trusts and powers in mind, let us turn to the case of Attorney-General of New Zealand v. New Zealand Insurance Co., Ltd. (A). It was a case of a trust. Mrs. Catherine Smith of Auckland in her will dated the 23rd December 1930 dealt with her residuary estate as follows:

'As to the rest, residue and remainder of my real and personal property of whatsoever kind and wheresoever situate. . . . . I direct my Trustee to apply the same in making other bequests towards institutions, societies or objects established in or about Auckland aforesaid for charitable, benevolent; educational or religious purposes and my Trustee may benefit such institutions, societies or objects and in such amounts or amount as it in its absolute discretion shall deem advisable'.

Institutions and societies were localised and purposes were specified by the testator. The objects which were to be benefited were charitable, benevolent, educational or religious; and the institutions and societies which were to be benefited were to be near about Auckland. The 'direction' of the testator which the trustee was required to carry out was that his estate was to be applied in the manner stated above. The only option which was left to the trustee was as to the choice of the institutions, societies or objects strictly within the ambit of the above direction and as to the amounts or amount. A question arose whether the residuary bequest was valid and effectual. It was contended in support of the bequest that although the fatal word 'benevolent' occurred, on which so many testamentary dispositions had been ship-wrecked, the bequest was salved by the fact that it was not in favour of benevolent purposes at large to be selected by the trustee, but was in favour of institutions, societies or objects in or about Auckland for benevolent purposes. It was suggested that sufficient definiteness was imparted to the benevolent objects of the bequest by specifying that they were to be institutions, societies or objects presumably in existence and ascertainable, and that those institutions, societies or objects were to be in or about Auckland, so that the trustee should have no difficulty in determining the class of objects among which to select beneficiaries. The Privy Council held that the want of precision was inherent in the word 'benevolent' itself; and consequently however circumscribed the local area, and assuming that only existing organisations were intended, it still remained that to predicate of an institution, society or object in or about Auckland that it must be 'benevolent' was not to identify it with the requisite precision. Lord Macmillan, who delivered the judgment of the Judicial Committee, observed :

'The privilege of controlling by will the disposition of property after death is subject to the condition that such disposition must be made in favour of ascertained or ascertainable persons or objects'.

and the Judicial Committee held that the bequest was not valid as the disposition was not made in favour of ascertained or ascertainable persons or objects. Mr. Sukhthankar relies upon this decision in support of his contention that fn the present case also, the disposition not having been made in favour of ascertained or ascertainable persons or objects or institutions was defective for uncertainty. It is to be noted, however that this decision would not help Mr. Sukhthankar's client as the case we are dealing with is not a case of a trust, but, as I shall presently show, it is a case of power and, therefore, no question can arise of any 'direction' of the testator being defective on account of vagueness or want of precision.

10. The next case to which our attention is invited by Mr. Sukhthankar is the case of Trikumdas Damodhar v. Haridas (B). It was a case in which N, by her will after making various bequests, bequeathed the residue of her estate as follows:

'As to whatever immovable (and) moveable (property) and property in cash belonging to me may be in excess or may remain over as surplus after a disposition shall have been made in accordance with what is stated in the clauses above written, my abovementioned six executors are to make use of the same in such manner as they may unanimously think proper for purposes of popular usefulness or for purposes of 'Charity'. And I Rive to them (i. e.), my abovementioned trustees full authority to use the same in that manner'.

The words 'my abovementioned six executors are to make use of the same in such manner as they may unanimously think proper for purposes of popular usefulness or for purposes of charity' would show that a direction was given by the testator to her executors for using her residuary estate for purposes of popular usefulness or purposes of charity. Therefore, it was also a case of a trust, but the trust ,was held invalid as the direction was ineffectual for uncertainty. This case also being a case of trust would not assist Mr. Sukhthankar's client, as the disposition made in this case by the first defendant in favour of the second defendant was a disposition made in virtue of power which was given by the testator to the first defendant by his will.

11. Mr. Tarkunde has referred us to the case of AIR 1921 PC 47. It was a case in which a Parsi by his will, after giving to his wife a life interest in his property, had directed as follows :

'And in her lifetime, keeping God and Meher Daver (the Dispenser of Justice) before her mind,my wife shall duly, as I have directed her orally, and according to the times, make her will, end all my heirs ..... shall duly act agreeably to the same.' 'It was held by the Privy Council that the clause did not mean that the testator s wife should dispose of the estate according to oral directions given by the testator, but she was to act according to her own discretion, and accordingly the wife had a valid general power of appointment. In that case, a question arose as to the construction of the words 'as I have directed her orally' and the question was whether the contents of the wife's will were to be as directed orally by the testator or whether the oral direction of the testator to his wife was that she should make her will in any manner she thought best. The view which their Lordships of the Privy Council took was that the discretion given by the testator to his wife orally was that in the making of her will she was to have absolute discretion. Mr. Justice Beaman, Who had tried the case, had come to the conclusion that the power which was given by the testator to his wife in the matter of disposition of his estate after her death was not a general power, but that it was a special power enabling her to dispose of the estate in accordance with the directions which he had given to her orally. The Privy Council disagreed with Mr. Justice Beaman's interpretation of the material clause in the will of the testator and observed in the course of their judgment: 'The question is whether he (meaning thereby the testator) meant to give her a general power of disposition or only a power exercisable in manner specified in his oral directions. In other words, did he mean that she should, in accordance with his oral directions, make her will disposing of the property as she should in her discretion think fit, or did he intend that she should by her will dispose of the property in accordance with his oral directions? In their Lordship's opinion, the former is the true view. The structure of the sentence favours it; for if the testator had intended that his wife's disposition should be in accordance with his oral directions, the words 'as I have directed her orally' would properly have followed and not preceded the words 'make her will'. The direction that the wife's will shall be made 'according to the times' or (as Macleod J. translates the Gujrati words) 'according to the circumstances,' and the reference to the 'Dispenser of Justice,' show that she was to have a discretion'. For those reasons, their Lordships took the view that a general power was conferred by the testator upon his wife to make her will and that in the making of her will the wife was to have an absolute, unfettered discretion. That general power was held good. Mr. Justice Bea-man's Judgment was reversed, and the appeal of Shirinbai to whom the estate which originally belonged to the testator was bequeathed by the testator's widow, was allowed. In the present case also, the structure of the sentence:

^^ ;k f'kok; ekb;k loZ brj bLVsVhph o iS'kph

O;oLFkk oqbZyps ,D>hD;qVj Eg.kwu Jh- nkeksnjfo'oukFk

xk[kys ;kuh ;X; okVsy R;k rTgsusa mI;qDralaLFksl ok

laLFkkal R;kaP;k bPNsl ;sbZy R;k i)rhusadjkaoha- **

in the codicil, the official English translations of which sentences would be :

^^Jh- nk- oh- xks[kys ;kauha R;kauk R;kauk ;ksX;okVasy

R;k rTgusa laLFksal fdaok laLFkkal vFkokR;kuka rs mi;q

okVay R;k i)rhus [kpZ djkok- ;k okor R;kapkfu.kZ;

v[ksjpk jgkok- **

'Shri Damodar Vishwanath Gokhale as the executor of the will should dispose of all my other estate and money according to his discretion (by Riving the same) to an institution or institutions of utility, as he may deem fit' and

'Shri D.V. Gokhale should spend all my residuary estate and money in such manner as he may deem fit (by giving the same to an institution or institutions or in any other manner he may deem useful). His decision in that behalf shall be final', would show that here also what was given by the testator to the first defendant by his will was a general power, pursuant to which the first defendant in his absolute discretion was to make a disposition of the estate in any manner he might consider fit and useful. In our view, therefore, the principles which would govern the present case would be the same as those which governed the decision of their Lordships of the Privy Council in Shirinbai v. Ratanbai (C).

12. The next case to which we have been referred by Mr. Tarkunde is the case of Gibbs v. Rumsey (D). It was a case in which Ann Clarke, by her will dated the 12th of December 1809, having given to her Executors her household goods, watches, trinkets, plate and wearing apparel to be disposed of to such persons and in such proportions as they or the survivor of them should in their or his discretion think proper, devised and bequeathed her freehold, copyhold and personal estate to Henry and James Rumsey, their heirs, executors, administrators and assigns upon trust to sell: and out of the money to arise by such sale, together with all her ready money, etc., and her all other estate and effects, she bequeathed several legacies; and among them 100 to each of her trustees for their care and trouble; and giving all her books to Henry Rumsey to be retained by him and divided amongst such of her friends as he should think proper, proceeded to say thus :

'I give and bequeath all the rest and residue of the monies arising from the sale of my said estate and all the residue of my 'personal estate-after payment of my debts, legacies and funeral expenses, and the expenses of proving this my will, unto my said trustees and executors (The said Henrv Rumsey and James Rumsey), to be disposed of unto such person and persons and in such manner and form and in such sum and sums of money as they in their discretion may think proper and expedient'.

The words which came up for consideration of their Lordships were the words :

'I give and bequeath all the rest and residue of the monies..... to be disposed of unto suchperson and persons and in such manner and form and in such sum and sums of money as they in their discretion may think proper and expedient.' Their Lordships observed in the course of their judgment that in the abovementioned words they saw a purely arbitrary power of disposition according to a discretion which no Court could either direct or control. In other words, the view, which their Lordships took of the abovementioned clause in the testatrix' will was that, by the said clause, a general power of disposition was given by the testatrix to her trustees and executors. That general power was held good. In the present case also, the power which was given by the testator to the first defendant by the words 'should dispose of all my other estate and money according to his discretion..... as he may deem fit' and 'should spend all my residuary estate and money in such manner as he may deem fit ..... or inany other manner he may deem useful. His deci-sion in that behalf shall be final' was to use the words of the Privy Council in Gibbs v. Rumsey, (D), power of disposition according to a discretion which no Court could either direct or control. As in Gibbs v. Rumsey, (D), we must hold that this general power, which was given by the testator to the first defendant, was good power and the dispositions made by the first defendant in pursuance of that power in favour of the second defendant were good and valid dispositions.

13. Upon the above mentioned view of the testator's will and codicil which we take, the appeal must fail and be dismissed with costs.

14. Appeal dismissed


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