Norman Macleod, Kt., C.J.
1. This suit was filed by the executors of the will of one Bai Moghi to have the will construed by the Court. Bai Moghi died on the 26th February 1911, possessed of property worth about Rs. 30,000, which she had inherited from her father arid therefore, was at her absolute disposal. On the 24th of m February she made a will appointing plaintiffs Nos. 1 to 5 and the 1st defendant her executors. The beneficiaries of her will were the son and daughter of a predeceased daughter of the testatrix. All the difficulty in construing the will has arisen owing to the desire, of which we have such frequent instances, of the testatrix to limit the devolution of her property after her death in a manner which is not recognised by law. The bulk of her property the testatrix bequeathed to the 2nd defendant, her grandson. But there are limitations of two kinds which the testatrix sought to impose. She did not wish him to enjoy the full ownership of the property until he had a son or daughter twenty years' old, so she directed that the delivery of possession to the 2nd defendant should be postponed till he had such a son or daughter. Clearly such directions are not recognised by law and therefore, up to that stage of the will the directions postponing the delivery of possession must be struck out as invalid.
2. The second method of limitation is sought to be imposed by, directing that if the grandson died without children, then the estate should not go to his heirs, but should go in accordance with the directions in the will, namely, that a sufficient sum should be set apart by the executors for the maintenance of the grandson's widow, and then the remainder should go to the grand-daughter. The words in the will as translated at p. 15 are as follows:-' But if he (i. e., the grandson) has got neither of the two (namely) a son or a daughter, and my said heir dies, then my executors are to take all my immoveable (and) moveable property in their own possession and dispose of it according to my directions.' These words might be construed in two ways. They might mean that ' the gift over should take effect, if the grandson died without leaving a son or a daughter at the time of his death ;' or the words might mean that the gift over should take effect ' if the grandson died without ever having had a son or a daughter,' and where there is any doubt as to the proper construction of such words, then the Court will lean in favour of the construction which is most favourable to the heir. If we construe the words as meaning ' if he died without leaving a son or a daughter at the time of his death, ' it might very well be that he might die leaving a large number of grand-children who would not succeed to the estate. But if we construe the words as meaning that ' the absolute estate given to the grandson becomes indefeasible as soon as he has a son or a daughter born to him,' then the estate will be secured to his descendants, if any surviving him. I think, therefore, on the whole, the proper construction to be put on the will with regard to the bequest to the 2nd defendant, is that ' the 2nd defendant has an absolute estate which is liable to be defeated if he dies without ever having had a son or a daughter. '
3. The question might arise what would happen if the 2nd defendant, having an absolute estate liable to be defeated in the event of his dying without having had a son or a daughter, dissipated the capital or corpus of the estate during his life-time. The questions which have come before the Courts in the case of bequests of an absolute estate liable to be defeated have always arisen after the death of the donee of the absolute estate : and our attention has not been directed to any case in the Reports in which a question has arisen during the life-time of the first donee as to whether he could be restrained in any way in dealing with the corpus. The idea of an absolute estate liable to be defeated is not one which appeals to one's ordinary common sense. The general idea in law is that the gift of an absolute estate implies that the donee's powers of alienation cannot be restricted in any way. But though the law does recognize that an absolute estate can be brought to an end, it nowhere prescribes what restraints can be imposed upon the enjoyment of the owner of such an absolute estate while it is uncertain whether the event will happen which will cause it to be defeated.
4. In the absence, therefore, of any authority on the question, it seems to me that we must hold that there can be no attempt to restrain the powers of alienation of the 2nd defendant in this case. I think, therefore, the Judge was wrong in holding that the 2nd defendant had a life-estate which was liable to be extended or enlarged into an absolute estate in the event of his dying leaving a son or a daughter. Such an estate, so far as I know, is not known to law, and I have never hoard of such a thing as a life-estate which can be enlarged on the happening of an uncertain event in the future. Therefore, I think, the 1st declaration in the order must be as follows ;-That in the residue of the properties of the testatrix, that would remain after paying Rs. 1,000 in charity and certain legacies to defendant No. 3, the defendant No. 2 takes an absolute estate liable to be defeated in the event of his dying without having had a son or a daughter.
5. The 2nd declaration will stand.
6. With regard to the 3rd declaration the Judge baa fallen into the same error in his laudable attempt to give effect to the very complicated directions given by the testatrix in her will. I think all that this Court can do to give effect to the directions with regard to the bequest of ornaments and the sum of Rs. 500 to the 3rd defendant is to hold that the gift of those ornaments and money to the 3rd defendant is liable to be defeated if the 3rd defendant dies without having had a son or a daughter, so that the 3rd declaration will run as follows:-That in the properties in para 4, Clause 1, of the will, defendant No. 8 takes an absolute estate, while in the ornaments and the sum of Rs. 500 specified in para 4, Clause 2, of the will, she takes an absolute estate liable to be defeated if she dies without having had a son or a daughter, in which case there is a gift over to defendant No. 2.
7. Then the 4th declaration must be deleted. Once you find that the testatrix has given an absolute estate to a devisee of any item of her property, then such devisee is entitled to possession of such property, provided he or she is of age, and the executors can no longer have any control of such property.
8. Then the directions as to costs will remain. The costs of this appeal will come out of the estate. There will be separate sets of costs, one in favour of respondents Nos. 1,2, 4 and 5 and another in favour of respondents Nos. 6 and 7.
9. I concur.