Norman Macleod, Kt., C.J.
1. The plaintiff in this suit is the widow of one Arthur Panton who died at Poona on or about the November 2, 1922, leaving a will dated December 24, 1918, and a codicil thereto dated October 29, 1922. The first defendant is the Administrator General to whom letters of administration with the will and codicil annexed were granted on June 28, 1923. The second defendant is the son and third defendant is the daughter of the deceased. The plaintiff claimed that certain war bonds of the face value of Rs. 1,00,000 standing at the date of the death of Mr. Panton in the names of himself and his wife or either of them belonged to her and not to the estate.
2. The admitted facts leading up to the purchase of the suit war bonds are as follows.
3. On August 23, 1922, Mr. Panton, who was then living at Poona, wrote to Messrs. Thomas Cook and Sons, London asking them to sell 8105-4-3 five per cent. war stock 1929-47 belonging to him and to remit the proceeds to Bombay. The war stock was sold and the proceeds amounting to Rs. 1,24,036 were remitted to Bombay according to instructions. On September 18, 1922, Mr. Panton wrote to the Imperial Bank of India at Bombay asking them to sell six per cent income tax free bonds up to Rs. 1,25,000. The Bank replied on September 20 offering the bonds at Rs. 100.6 clear.
4. On October 17, 1922, Mr. Panton wrote to the Bank :-
I enclose a cheque for Rs, 1,00,750 and will feel obliged if you will sell me 6% Government Loan income Tax Free papers as follows 10 pieces of Rs. 10,000 each. The paper should be held by you for safe custody and the receipt for same sent to me.
5. On the same day he wrote to Cos and Co., who were the executors appointed by his will, as follows :-
As executors of my will I beg to advise you that within the past month I have sold my 5% English War Bonds. Of the proceeds I have asked the Imperial Hank of India, Bombay, to purchase 1 lakh Rs. 6% Government loan and will in due course send you the safe custody receipt for same when it comes to hand.
Messrs. Cook & Son now only hold 1,000 worth of Port of Bombay Bonds in London, all the rest of my securities and estate being in India. I will very shortly send you a complete list of the estate.
6. On October 25, the Bank sent the safe custody receipt for the bonds to Mr. Panton It Was in the following terms :
Received from Arthur Panton and Mrs. Mabel Panton securities for Rs. 1 lakh as under noted deposited with the Imperial Bonk of India. The securities will be deliverable to the Depositors or the survivors or survivor of them, or the representatives of such survivor.
7. It may be mentioned here that in August 1922 Mr. Panton sold through the Imperial Bank Port Trust Bonds for Rs. 1000 and instructed the Bank to purchase six per cent war bonds of the face value of Rs. 1000. He asked the Bank to have the new six per pent paper made in the name of Arthur Panton, Mrs. Mahel Panton or either of them. A safe custody receipt was sent by the Bank for one six per cent bond for Rs. 1000, which was ' in the same form as the later receipt for the bonds for Rs. one lakh. The receipt for the bond for Rs. 1000 was given to Mrs. Panton by her husband. On October 27, the deceased, who was then seriously ill, asked his wife to write two letters, one to the Bank acknowledging the receipt of the safe custody receipt for the bonds for Rs. one lakh, the other to Messrs. Cox & Co. enclosing the safe custody receipt.
8. The plaint para 7 alleges that the bonds for one lakh were also made out in the joint names of the deceased and the plaintiff or either of them or order on the same footing as the bonds for Rs. 1000 mentioned in para 6.
9. Para 8 states that the deceased informed the plaintiff of the said new investments in joint names and when sending the bonds to Messrs. Cox & Co. told her that he did not consider it safe to keep such important documents in the house. Para 13 states: The deceased vested the bonds for Rs. one lakh in himself and the plaintiff as joint owners, and as the remaining joint owner thereof she was entitled to the bonds and the income arising therefrom from the date of the death of the deceased.
10. The first defendant pleaded that the bonds were purchased by the deceased out of his own funds and were held in joint names purely for convenience. They were, therefore, a part of the estate,
11. The second defendant in his written statement adopted the same line of defence against the plaintiff's claim, On these pleadings the following issues were rested :
(1) Whether the bonds of the face value of Rs. one lakh form part of the estate of the deceased.
(2) Whether the bonds belong to the plaintiff.
12. The trial Judge held that the bonds belonged to the estate and dismissed the plaintiff's suit. The plaintiff has appealed. The case in the trial Court appears to have proceeded as if it had been conceded that the deceased gave the same instructions to the Bank to purchase the bonds in the joint names of himself and his wife as had given in the case of the bond for Rs. 1000, the safe custody receipt for which He gave to his wife, who retained it until his death.
13. The oral evidence and the surrounding circumstances were then considered at great length by the learned Judge with a view to deciding whether the presumption in favour of an advancement to Mrs. Panton of the bonds owing to their standing in the joint names could be rebutted.
14. Assuming that the deceased had given these instructions, I think the learned Judge has rightly directed himself on the question of law. In Kerwick v. Kerwick (1920) L.R. 47 IndAp 275 the plaintiff prayed for a declaration that two houses which he had built on sites purchased by him were transferred to his wife benami and that he was the true owner. The defendant pleaded that the house sites had been conveyed to her and the houses built thereon for her as an advancement and that she was, therefore, entitled to them beneficially as her own property. Their lordships held that the same principle or rules of law were applicable to the case as if it had been tried in one of the Courts of Chancery in England and that according to these principles and rules of law where a husband or father pays the money and the purchase is taken in the name of the wife or child there is a presumption of an intended advancement. The onus thus lay on the person disputing the advancement to prove that the purchase made was not intended to be advancement: Marshal v. Crutwell (1875) L.R. 20 . Reference was then made to Devoy v. Devoy (1857) 3 Sm. & G. 403 in which case a father transferred a sum of stock into the names of himself, his wife and daughter jointly and the learned Vice Chancellor said (p. 405): 'The transfer by the father into the names of himself, and his wife and child, jointly, of a sum of stock, raises a presumption that he intended it as an advancement. That presumption may be rebutted by evidence. But in order to rebut it, the evidence must show the real nature of the transaction.' And their lordships considered that the conclusion to be drawn from that case appeared to be that the mere statement by a husband or father who had made an apparent advancement in favour of a wife or child that he did not intend it to confer any beneficial interest in the thing given or transferred to the donee or transferee was of little avail unless he established at the same time with reasonable clearness that he had other and different motives for the action he took.
15. It is obvious that the difficulties in the way of proving such other and different motives on the part of the husband will be greatly increased if there is no direct evidence, as there was in the case just cited, available to explain how the war bonds came to be endorsed in the names of himself and his wife.
16. The plaintiff's evidence with regard to what passed between her husband and herself when the suit bonds were purchased appears at p. 52, 1. 29:
In July 1922 be told me that he thought as Willie had written for the money like that it would be wiser to sell out the English securities as soon as possible. The safe custody receipt (Ex. D) has been in my possession. My husband gave it to me and he remarked to me that it was a very small sum and that he would give a large sum when the English securities were sold out and the moneys in respect of the English securities were received through the Hong-Kong and Shanghai Bank. He told me that Rs. 1,24,000 were realised : and when he wrote the cheque for Rs. 1,00,000, I was called in by him. He told me that he was now putting a hundred thousand in the joint names and keeping Rs. 24,000 in his own name. He told me that last time he gave me only one thousand and that this time he was giving one hundred thousand, He received the safe custody receipt in October I from the Imperial Bank and gave it to me to read. He suggested that as it was a valuable document it might be sent to Cox and Co. for safe custody. I agreed : be asked me to write letters for him saying that he was not in a humour to write. I asked him to dictate, and I wrote according to his dictation and put his signature with his consent. The letters were despatched. My husband told me then that the interest of the sum would be about Rs. 900 , per month and that I would be independent of my Son and my daughter and anybody else.
17. The Judge said he should have been prepared to attach great weight to the evidence of Mrs, Panton if there had been nothing to contradict her statements on this point. Undoubtedly if that evidence can be believed, the plaintiff must succeed. I But I doubt whether the remarks made by the Judge that those statements should not be acted upon unless corroborated are f correct. The fact that the bonds were in the joint names would be sufficient corroboration, while the onus would lie on the defendant to prove that the deceased had a contrary intention to the one to be presumed from that fact.
18. The defendants, however, are entitled to rely on every circumstance which may tend to show that the evidence of Mrs. Panton was not true, with regard to what her husband told her, but even if we disbelieve Mra, Panton that will not by itself avail the defendants.
19. On November 21, 1922, Mrs. Panton wrote to Messrs. Cox & Co. asking them to send her the safe custody receipt for the suit bonds as she proposed having them transferred to her name as they stood in the joint names of her husband and herself. This letter was sent by Cox & Co. to Messrs. Little & Co. who replied that the suit bonds as well as the bond for Rs. 1000 formed part of the estate of the deceased. Mrs. Panton was asked to send them the safe custody receipt for that bond. On November 29, Mrs. Panton sent thorn that receipt.
20. On November 30, Little & Co. wrote to her acknowledging its receipt as follows: 'We take it that by sending us the receipt you accept the position that the securities for Rs. 1,01,000 form part of the estate of your late husband and that you do not claim these as survivor and will do what is necessary to transfer the ecurities into the name of Messrs Cox & Co.' On December 6, Messrs. Ardeshir Hormusji & Dinshaw on behalf of Mra. Panton, wrote to Little & Co. that Mrs. Panton had not accepted the position that the securities for Rs. 1,01,000 formed part of the estate of the deceased and demanded the return of the safe custody receipts. Mrs. Panton had to admit that she did not tell her solicitors until January 1924, shortly before the plaint was filed, that her husband had told her he was making her a gift of the suit bonds. But the plaint does not allege this. As already stated, para 8 merely gays: 'Deceased informed the plaintiff of the said new investments in joint names.
21. The Judge was of Opinion that it was unsafe to rely on the widow's testimony owing to the contents of the letter she wrote to her son on December 9, while she was staying with her daughter at Audheri. That letter, if its contents were present to the mind of the plaintiff when she wrote it, clearly shows that she knew nothing about any intention on the part of her husband to make a gift to her of the one lakh of war bonds. It was suggested that the letter was drafted by her daughter and then dictated to Mrs. Panton when she was in a very dis-tressed state of a mind, so that she did not understand or realise the meaning of what she wrote. On this point the daughter and Mrs, Panton were examined and cross-examined at considerable length and the conclusion the Judge arrived at was that both mother and daughter acted in concert, that her daughter helped her mother to draft the letter and that the plaintiff understood fully the contents of the letter, and was responsible for its contents, It would be difficult for us in any event to differ from this conclusion but we have been able to form some opinion of our own of its correctness from a compari-sion of the draft with the letter. The letter is not a slavish copy of the draft word for word, because in many places the construction is altered and words are changed. The plaintiff was in the habit of underlining words in her letters and she underlined many words as she wrote the letter of December 9. This would show she understood the meaning: of what she was writing, and her statement that she underlined any sentence at random without any reason can carry no weight. It is obvious that all the important words and passages are underlined.
22. The letter begins:
You will most probably by now have received a copy of your father's will made in 1913 and also the attached codicil made just before he actually took to his bed on my behalf, viz., that I should receive one third of the interest on the securities held at the time of his death.
I feel it my bounden duty to let you know that your father had also intended that you and May should get the remaining 2/3 of the interests equally on the securities.
23. If the writer had been told by her husband that he was making her a gift of the one lakh of war bonds, she must have known that the codicil giving her one third of the interest on the remaining securities, would not have been made on her behalf as she was getting much more, namely Rs. 1200 a year under the will. She further on informs her son that the Rs. 1,01,000 was with the Imperial Bank invested in Government six per cent securities in the joint names of the deceased and herself, a fact of which she was not aware, as 'father had not mentioned a word about the matter to me.' And she points out the necessity of holding those securities in the Imperial Bank apart from the estate to be handled by Cox & Co. in order to safeguard the interests of herself and her two children, as if any disaster happened to Cox & Co. at least the securities with the Imperial Bank would be saved to them.
24. Finally the following passage, 'I mean that the Rs. 1,01,000 should be held in securities for the benefit of all three of us concerned, and we will all three draw the interests equally on this amount; no party ever attempting to touch or interfere with this capital during my life time,' cannot be explained if the plaintiff had been told by her husband that the securities had been given to her.
25. I now come to the surrounding circumstances on which the learned Judge relies for holding that the deceased not only had no intention to make an advancement but had another motive for having the bonds endorsed in the joint names.
26. First, the letter of October 17, written by the deceased to Cox find Co. That letter shows that he wanted Cox & Co, who were the executors named in his will, to hold the safe custody receipt for the suit bonds. The words 'all the rest of my securities and estate being in India, I will very shortly send you a complete list of the estate,' may be read as revealing an intention that the suit bonds were part of his estate to pass according to the provisions of his will. At the same time it is quite possible that he would not care to keep the receipt with himself and thought it would be safer with Cox & Co.
27. Second, the terms of the codicil of October 29. By his will he directed that Rs. 100 per mensem should be paid to his wife, Rs. 100 per mensem to his daughter, and Rs. 8000 annually by monthly payments of Rs. 250 to his son until he reached the age of twenty-three and Rs. 100 a month thereafter until he reached the age of thirty, when he should become entitled to the residue of the estate subject to the payments to be made to his wife and daughter.
28. By his codicil he directed that Mrs. Panton should get instead of a monthly payment of Rs. 100, one third of the monthly interest on the securities owned by him at the date of his demise. It was contended that if the deceased intended that the suit bonds should not form part of his estate he would not have made this codicil, the result of which would be to have very little for his son, while if the suit bonds were to form part of the estate he may well have wished his wife to get more than Rs, 1200 a year. In this connection I can also refer to the statements in the letter of December 9, that the deceased wished to make another codicil in order that he might give his children the other two thirds of the interest on his securities and had sent for a lawyer to draw it up. In her cross-examination Mm Panton said: 'this passage was concocted by her daughter, but she had to admit that deceased told the doctor that he would like his son and daughter to take the other two thirds but he could not write any more.
29. From these circumstances the Judge concluded that the purchase of the suit bonds in the joint names was intended to be for the sake of convenience of drawing interest either during his lifetime if his life were prolonged, or immediately after his death before the executors could arrange to draw the interest.
30. I agree with the learned Judge that the evidence regarding the strained relations between the father and the children does not throw any useful light upon the principal question that has to be decided, and it would have been much better if no reference had been made to these relations. But the difficulty which does exist has not I think been sufficiently appreciated by the learned Judge, according to the view of the law which he has himself laid down. Assuming that his wife knew nothing about the suit bonds standing in the joint names and assuming that was done under the instructions of the deceased, the question is whether the surrounding ciroumstances relied on by the learned Judge point with reasonable clearness to the motive of convenience having actuated the deceased in giving those instructions.
31. We point out in the course of the argument that it was not clear whether as a matter of fact the deceased had. given any instructions to the Bank to endorse the suit bonds in the joint names, and if not, whether owing to the state of his health when the safe custody receipt arrived he was fully aware of what the bank had done and its consequences. That these very important questions were in issue and had never been tried was not perceived at the trial either by the Judge or the counsel for the parties, and it became necessary for us, for the reasons then given, to frame issues and send them down to the trial Court for a finding to be recorded and returned to us.
32. The Judge has now recorded further evidence and returned his findings on those issues.
33. He has found that the deceased did not give any instructions to the Imperial Bank to endorse the bonds for one lakh of rupees in the names of himself and his wife, and that there is no explanation forthcoming, which could be proved by evidence, how it came to pass that the bonds were endorsed in the joint names.
34. The acting Assistant Registrar of Securities in the Imperial Bank admitted that no other instructions than those contained in the letter of October 17, could be found. It could not be in accordance with the practice of the bank to endorse securities in joint names unless instructions were received to that effect, and be could only presume that Mr. Mackenzie might have acted on his own initiative in October 1922 in accordance with the instructions given in the letter of August 9.
35. We agree with the Judge's finding on the first two issues sent down to him. On the third issue 'whether if no instructions were given by the deceased to the Bank he was aware when he received the safe custody receipt and asked his wife to send it to Cox & Co. that the receipt showed that the bonds were endorsed in the names of himself and his wife,' the learned Judge was inclined to believe that the deceased was aware of the contents of the safe custody receipt, as there was no medical evidence in the case as to his physical condition on October 27.
36. Even assuming that the deceased read the receipt and became aware of what the bank had done, the case must how be considered from an entirely different point of view to that from which it was considered in the lower Court, on the footing that the cases above referred to, in which there was a transfer of property by the husband to his wife, or a transfer of stock by a husband and father into the names of himself his wife and child, were in point.
37. It is clear that on October 17, the deceased had no intention of making an advancement to his wife, and it appears to me very doubtful whether the presumption which arises when an advancement has actually been made can arise on the facts of the case, merely because the deceased raised no protest against the action of the bank and asked his wife to send on the receipt to Cox & Co. He was seriously ill, and had not sufficient energy to write the two simple letters which were required to be sent to the bank and Messrs, Cox & Co. If the presumption in favour of the wife does arise from these facts it is equally certain that there is no possibility of proving any other sufficient motive for the deceased allowing the war bonds to remain in the joint names.
38. I think, speaking for myself, that, on the authorities, there must in the first instance be some evidence of the exercise of some independent volition of mind on the part of the husband or father before it can be said that the gift or transfer must be presumed to have been made as an advancement, unless there is evidence of some other and sufficient motive for the gift or transfer. If the deceased had given the receipt to his wife, that could be evidence to support her statement that he told her he was giving her one lakh when he wrote the cheque for purchasing the bonds, but the fact that he asked his wife to send the receipt to Cox & Co., taken in conjunction with his letter to them of October 17, is evidence, not that he had any other motive in making the investment in the joint names but that he really never paid any attention to the form of the receipt. He may very well have thought in his then condition that it was not worth while troubling the bank to alter the receipt, it would be alright if he sent it on to Cox & Co. to hold with the other securities belonging to his estate.
39. Put in another way, I think there should be evidence that he knew that owing to the form of the receipt it could be suggested thereafter that he had made an advancement to his wife, and that by not raising any objection he had the intention of making' such an advancement, If we could believe the evidence of Mrs. Pantoa that the deceased told her when writing the cheque for the bank that he was putting the hundred thousand in their joint names, then we would be entitled to say that the deceased omitted to give the necessary instructions when writing to the bank which were in his mind, and became aware when the receipt was sent to him that in spite of this omission the instructions he had intended to give had been carried out, but for the reasons already given that evidence is not credible. There was, therefore, no act on the part of the deceased which could operate as a gift or transfer of the bonds to his wife which must be presumed to have been made as an advancement, I think, therefore, that the plaintiff is not entitled to succeed, though not entirely on the grounds given by the learned Judge in the Court below for his decision.
40. The appeal must be dismissed with costs.
1. The suit out of which this appeal arises was brought by the appellant Mabel Pantos, to have it declared that she was the true owner of the war bonds referred to in paragraph 7 of the plaint, and that they did not form part of the estate of her husband Arthur Panton who died on November 2, 1922. She also prayed that defendant No. 1 might be ordered to hand over to her the said bonds or the safe custody reoeipt relating thereto.
2. The facts of the case are sufficiently detailed in the judgment of the learned trial Judge, and that of my lord the Chief Justice, I will re-state the material facts which are these :
In July 1922, Mr. Panton purchased a six per cent war bond of the face value of Rs. 1000 in the joint names of himself and his wife and instructed the Imperial Bank of India, Bombay Branch, to keep it in safe custody. On August 9, he wrote to the Bank as follows :-
I return your safe custody receipt No. 10796 of October 13, 1916, for several Bounties including one for Port Trust Bond G909 for Rs, 1,000 in Loan of 1892. I would like the new six per cent paper for Rs, 1,000 made in the name of Arthur Panton, Mrs. Mabel Fanton or either or survivor.
Would you kindly issue a separates safe custody Receipt for this Rs. 1,000 piece and a fresh receipt for the remaining twenty-one bonds of your safe custody receipt No. 10796 of October 13, 1916.
3. In September 1922, the Bank sent him the safe oustody receipt (Ex. D), which he made over to the appellant.
4. On the 17th October he wrote to the Bank :
I enclose a cheque for Rs. 1,00,750 and will feel obliged if yon will kindly sell me six per cent Government loan, Income-tax free papers, as follows : ten pieces of Rs. 10.010 each. The paper should be held by you for safe custody and the receipt for same sent to me.
5. On the same day he wrote a letter to Messrs, Cox & Co., which is important; it is in these terms :
As executors of my will I beg to advise you that within the past month I have sold my five per cent English war bonds. Of the proceeds I have asked the Imperial Bank of India, Bombay, to purchase one lakh Rs. six per cent Government loan and will in due course send you the safe custody receipt for game when it cornea to hand.
Messrs. Cook & Son now only hold 1,000 worth of Port of Bombay Bonds in London, all the rest of my securities and estate being in India.
6. On October 18, the bank purchased six per cent. bonds for Rs. 1,00,000 and endorsed them thus: 'Pay Arthur Panton and Mabel Panton or either of them or order.' There is no evidence in the case to show that that endorsement was made in pursuance of instructions given by Mr. Panton either in writing or verbally. On October 25, the bank forwarded to him the safe custody receipt, Ex. B; it was made out in the joint names of Arthur Panton and Mabel Panton, On Ootober 27, Mr. Panton sent it to Cox & Co. with a covering letter stating: 'I enclose the... safe custody receipt No. 22469 for Rs. one lac six per cent papers.' He was at that time in failing health, but the trial Judge was inclined to believe that he was aware of the contents of the said receipt when he sent it to Cox & Co., and that opinion maybe accepted.
7. On October 29, he wrote out a codicil to his will in these terms: 'I hereby desire to alter the monthly payments of Rs. 100 to my wife Mabel Panton to one-third of the monthly instalment due on the securities owned by me at the date of my demise.' In her evidence the plaintiff says: 'When the codicil was written my husband told the doctor that he would like his son and daughter to take the other two-thirds; but he could not write any more; and he asked me to call in a lawyer.' The lawyer did not come. This statement is supported by the letter Ex. No. 5 written on November 11, by Mr. Richardson apparently at the instance of the plaintiff.
8. It is contended for the plaintiff that her husband intended to confer these bonds on her as an advancement, and that the facts set out above raise the presumption that an advancement to her was intended (Kerwick v. Kerwick (1920) L.R. 47 IndAp 275.
9. The question whether the facts narrated above are sufficient to raise a presumption that an advancement to the plaintiff was intended, is not free from doubt; but I am inclined to think they are insufficient for that purpose. It is not proved in this case that these bonds were purchased in joint names under instructions given by Mr. Panton. In September and October 1922, Mr. Mackenzie was in charge of the securities department of the bank. His evidence was not available; but his successor Mr. Ewing says in his evidence : 'For the particular transaction in October 1922, separate written instructions should have been received. I can't say-but it is possible that Mr. Mackenzie may have acted on his own initiative in October 1922, in accordance with the instructions given in the letter of August 9.' The safe custody receipt, Ex. B, which was forwarded by the bank on October 25 must have shown Mr. Panton that these bonds had been purchased in the joint names of himself and his wife; and it is permissible to the plaintiff to urge that he must be taken to have acquiesced in it. But on October 27 he sent that receipt to Cox & Co., the executors of his will, in accordance with what he had stated in his letter written ten days earlier. It is material to note that whereas he gave the receipt (Ex. D), in respect of the Rs. 1000 bond, to the plaintiff, he entrusted this one (Ex. B) to Cox & Co. He died on November 2. The fact that knowing the contents of the receipt he took no action to rectify it or to alter the endorsement on the bonds within the last six days of his existence, is hardly sufficient to raise a presumption that an advancement to the wife was intended.
10. Assuming, however, that the facts do raise that presumption, it is a presumption which may be rebutted by evidence. In Marshal v. Crutwell (1875) L.R. 20 Sir George Jessel M.R. said (p. 329):-
As I understand it, the law is this : The mere circumstance that the name of a child or a wife is inserted on the occasion of a purchase of stock is not sufficient to rebut a resulting trust in favour of the purchaser if the surrounding circumstances lead to the conclusion that a trust was intended. Although a purchase in the name of a wife or a child, if altogether unexplained, will be deemed a gift, yet you may take surrounding circumstances into consideration, so as to say that it is a trust, not a gift.
11. The trial Judge, after a careful consideration of the evidence adduced in the case, came to the conclusion that the presumption which arose in favour of the plaintiff in consequence of the purchase of the bonds in joint names was displaced by the surrounding circumstances and the evidence, that the true view of the matter was that the deceased intended to treat the bond as part of his estate, and that the purchase in joint names was intended for the sake of convenience of drawinginterest during his life-time or immediately after his death before his executors could arrange to draw the interest. I have arrived at the same conclusion. The facts and circumstances which support that conclusion, shortly stated, are: (1) Mr. Panton did not hand over either these bonds or the safe custody receipt, Exh. B, to his wife, but entrusted them to persons whom he had appointed as his executors; (2) having regard to the extent of his property, the scheme of his will, and the codicil, it is unlikely that he intended to make a gift of Rs. 1,00,000 to his wife; and (3) the admitted fact that at the time he made the codicil, Mr. Panton expressed his intention to make another codicil giving to his son and daughter one-third equally out of the remaining two-thirds of the interest on the securities owned by him, shews that he treated these bonds as part of his estate, and that an advancement to his wife was not intended.
12. The plaintiff has, however, said in her evidence :
The safe custody receipt Ex. D has been in my possession, My husband gave it to me and he remarked to me that it was a very small sum and that he would give a large sum when the English securities were sold out. The monies in respect of the English securities were received through the Hong-Kong and Shanghai Bank. He told me that Rs. 1,24,000 were realised; and when he wrote the cheque for Rs. 100,000 I was called is by him. He told me that he was now patting a hundred thousand in the joint names and keeping Rs. 24,000 in his own name. he told me that last time he gave me only one thousand and that this time he was giving one hundred thousand.
13. But this story conflicts with the statements contained in the letter Ex. P which she wrote to her son on December 9, 1922. The material portions of that letter are these:
I feel it my bounden duty to lot you know that your father had also intended that you and May should get the remaining two-third of the interests equally on the securities.... I must further also inform you that the Imperial Bank of India has written to me and informed me of the fact that Rs. 1,01,000 (one lakh and one thousand) lies in their Bank invested in Government six per cent securities in father's and my names (jointly). I was not aware of this fact, as father had not mentioned a word about this matter to me. Messrs. Cox and Co. now want me to transfer this amount on to their names, and are asking me to withdraw my name from it.... You will see by the terms of the will that the estate is controlled by Messrs. Cox and Co. We are merely receiving the interest on the monies, so should ever Cox and Co. fail we will throe of us be beggars, because they control the estate.... Cox and Co. will most probably themselves inform you this Mail that I have not given my consent to allow them to handle this Rs. 1,01,000 for reasons already stated be you only. I mean that this Rs. 1,01,000 should be held in securities for the benefit of all three of us concerned and we will all three draw the interest equally on this amount; no party ever attempting to touch or interfere with this capital during my life-time.
14. Mrs. Panton now says that she is not responsible for the statements contained in that letter. But, for the reasons given by the learned Judge, her explanation is clearly unacceptable.
15. I agree, on these grounds, in holding that the appeal fails.