1. This is a suit brought by the Administrator-General of the United Provinces for a grant of Letters of Administration de bonis non to the estate of James William Twalling, deceased with a copy of the will annexed. The opposite party denies the right of the petitioner to obtain such a grant alleging that the estate of James William Twalling deceased has been completely administered.
2. The material facts of the case and all the relevant documents have been admitted on the pleadings or by counsel for both parties before me during the hearing and that being so it was unnecessary to call any evidence on behalf of either of the parties. The issue involved in this case is a purely legal one, viz., the true construction to be given to a devise or bequest of certain real or immovable property contained in the will of James William Twalling deceased.
3. James William Twalling a Government Pensioner residing in the Cantonments at Meerut died on 4th September 1893 leaving a will dated 17th October 1887. He left surviving him his widow Mrs. Eliza Rebecca Twalling and three daughters, viz. Miss Grace Edith Twalling, Mrs. Walker and Mrs. Fink. The latter appears to have greatly displeased the testator during his lifetime and she is expressly deprived in the will of any share in the property left by the testator.
4. By the terms of this will the testator revoked all previous wills and appointed his widow sole executrix thereof. After a direction to the executrix to pay all just debts, funeral and testamentary expenses, the testator proceeds to dispose of his property dealing separately with his personal and real property. The bequests of his personal or moveable property read as follows:
I give, devise and bequeath all my personal property which I have acquired or may acquire by purchase or otherwise at any time before my decease, such as jewellery, silver plate, household furniture, fittings of carriages and horses and all and every sum or sums of money which may be in my house or due to me at the time of my decease as also all stock funds, Government promissory-notes, commonly called Company's paper, and other securities unto my beloved wife Eliza Rebecca Twalling who shall enjoy the income, dividends, interests and profits thereof during her lifetime only and after her decease shall pay and apply the same income, dividends, interests and profits towards the maintenance and support of such of my daughters as shall from time to time be sole and unmarried and after the marriage or decease of my last unmarried daughter shall divide my said personal property in equal shares among such of my daughters as shall then be living except my daughter Alice Eliza Fink whom I exclude altogether from this will as her conduct has been most disgraceful.
5. With regard to his real or immovable property he makes the following provisions:
I also give, devise and bequeath to my said beloved wife Eliza Rebecca Twalling all that messuage tenement or dwelling house with outhouses, wells, rights of way and appurtenances purchased by me from the estate of the late George Beau of Saharanpur and being situate in Hill or Barrack Street No. 123 in the Cantonment of Meerut and butted and bounded as described in the deed of sale dated 16th December 1873 as also every other real property whether in reversion, remainder or expectancy. Should my said beloved wife Eliza Rebecca Twalling at any time wish to sell or dispose of the said house she is hereby authorised to do so at a reasonable price and without detriment or loss to the estate and to invest the whole of the sale proceeds of the said house in Government promissory-notes, commonly called Company's paper and the interest thereof shall be enjoyed by my said beloved wife Eliza Rebecca Twalling during her lifetime only and after her decease the same interest shall be paid and applied towards the maintenance and support of such of my daughters as shall from time to time be sole and unmarried and after the marriage or decease of my last unmarried daughter the amount of the said Government promissory-notes, commonly called Company's paper, shall be divided in equal shares among such of my daughters as shall then be living except my daughter Alice Eliza Pink who is mentioned in Clause 2 of this will.
6. Probate of this will was granted to the widow Mrs. Twalling on 14th October 1893 and thereafter she continued to reside in the Meerut Cantonments in the house mentioned in the will (now referred to as 'Park View') until her death on 14th July 1900. Mrs. Twalling left no will and Letters of Administration to her estate and to any unadministered portion of the estate of her husband the late James William Twalling were granted to the unmarried daughter Miss Grace Edith Twalling on 29th November 1900. The Letters of Administration to any unadministered portion of the estate of her late father were granted to Miss Twalling upon the assumption that her mother Mrs. Twalling deceased had only a life interest in the house in question and that after her decease Miss Twalling had a limited interest only in this house liable to be defeated in certain events. For the purposes of granting Letters of Administration to Miss Twalling it was not necessary to construe the will of James William Twalling deceased and it is not contended that any decision has been given on this will by the Court granting Letters of Administration which can in any way operate as res judicata between the present parties.
7. Miss Grace Twilling continued to reside in the old family residence 'Park View', and it is mow alleged that she spent large sums of money upon it to maintain it in a habitable condition. This fact however is not admitted by the petitioner and no evidence was called to establish it. No decision upon this issue however is necessary as it cannot affect my ultimate decision in this case.
8. Mrs. Walker died on 6th March 1920 and Mrs. Fink also died some time subsequent to the death of Mrs. Twalling and before the death of Miss Grace Edith Twalling which occurred on 20th November 1933. At the date of her death Miss Twalling resided at 'Park View' and by her will dated 24th May 1932, bequeathed the whole of her property to the opposite party Mrs. Bower who obtained probate of the said will on 24th March 1934. Mrs. Bower, it is to be observed, is the eldest daughter of the late Mrs. Fink who had been expressly excluded from any share in her father's property.
9. It is the case for the petitioner that Mrs. Twalling and after her death Miss Grace Edith Twalling were only life tenants of the house now known as 'Park View' and that on the death of the latter no interest in it could pass under her will to the opposite party. As I have pointed out previously Miss Twalling was the last surviving daughter of James William Twalling deceased and in the events that have happened it is contended that the bequest or legacy lapsed and that the house now forms part of the estate of James William Twalling deceased which has not been disposed of by his will. For that reason the present claim to a grant de bonis non with the will annexed is made.
10. On the other hand the opposite party contends that the will of James William Twalling deceased gave the widow Mrs. Twalling an absolute interest in the house which passed to Miss Twalling as her administratrix. As the latter at the date of her death had been in sole possession of the premises for 33 years it is contended that any rights vested in Mrs. Twalling's other children and their representatives are long since barred by limitation and that consequently at the date of her death Miss Twalling was the sole owner of the property and entitled to dispose of it by will.
11. If Mrs. Twalling was given an absolute interest in the property by the will under consideration, the property cannot now form part of any unadministered portion of the estate of her husband. On the other hand if a limited interest was only given to Mrs. Twalling and after her death to Miss Grace Edith Twalling it may well be t events that have happened there has been a lapse and that the house now remains undisposed of by the will of James William Twalling and is therefore a part of the latter's estate still unadministered. If the house is not disposed of by the will the petitioner is entitled to the grant prayed. It may be pointed out at this stage that the claim is limited to the house known as 'Park View' as it is not now admittedly possible for the petitioner to trace and identify any of the personal property possibly undisposed of by the testator by this will.
12. The issues which were agreed between the parties are (1) on a correct construction of the will of the testator, the late Mr. J.W. Twalling, did any portion of the estate of the late James William Twalling remain unadministered at the death of Miss Grace Edith Twalling? (2). Is the Administrator-General, U.P., entitled to Letters of Administration de bonis non
13. The answers to the questions raised in these issues depend upon the true construction of the bequest of the immovable property contained in the will of the late James William Twalling the terms of which I have set out in an earlier portion of this judgment. As stated previously the will deals separately with the moveable and immovable property. The widow is in terms given only a life interest in the personal or immovable property and on her death detailed provisions are made for the devolution of the property. On the other hand the bequest of the real or immovable property differs very materially from that of the personal or immovable property. The house is devised and bequeathed to the widow 'as also every other real property whether in reversion, remainder or expectancy.' If the terms of the devise or bequest stopped there, the will would clearly confer upon the widow an absolute interest in their realty or immovable property, as it is provided by Section 95, Succession Act, of 1925 that where property is bequeathed to any person such person is entitled to the whole interest of the testator therein unless it appears from the will that only a restricted interest was intended for him.
14. The matter is however complicated by the provisions which follow this bequest. By these provisions the testator imposes limitations on the widow's right to sell or dispose of the property and the wording of these provisions is somewhat strange. The testator does not in terms say that the widow cannot sell except upon certain definite conditions, but what he does say is. that should she at any time wish to sell or dispose of the said house she is authorised to do so at a reasonable price and without detriment or loss to the estate and in such case the proceeds of sale are to be invested and disposed of in precisely the same way as the personality or moveable property is disposed of in the earlier portion of the will. It is to be observed that these provisions dealing with a possible sale by the widow apply only to the house and not to any other real or immovable property whether in reversion, remainder or expectancy which might pass under this devise or bequest. The actual bequest to the widow covers the whole of the property, whereas the limitation sought to be imposed upon her power of sale is confined only to the house.
15. It has been strongly urged by counsel for the petitioner that the will only gave the widow a life interest in this house. It is argued that the provisions as to the devolution of the proceeds of sale of the house show a clear intention on the part of the testator to give the widow not an absolute interest, but a limited interest, that is an interest for her life only. It is expressly provided by Section 82, Succession Act, 1925, that the meaning of any clause in a will is to be collected from the entire instrument and all its parts must be construed with reference to each other. That being so it is argued that it is clear that what the testator intended was that the real or immovable property should pass in the same way as the personality, that is, to the widow for her life then to such daughter or daughters as were unmarried and upon the marriage or decease of the last unmarried daughter 'to the surviving daughters equally, always excluding Mrs. Fink. It is urged that in construing the bequest of the house regard must be had to the terms of the previous bequests. In short it is contended that when the will is regarded as a whole it is dear that the testator never intended his widow to have any thing more than a life interest in the immovable property or in any event in the house in question. If that was the intention of the testator it is extremely strange that he did not expressly say so. He had in an earlier portion of this will disposed of his personality and had expressly created limited interests. He was careful to say that his widow was to have the income dividends, interest and profits of his personal property during his lifetime only, but he makes no such provision when dealing with his realty or immovable property. It is true that he gives her a life interest only in the proceeds of sale if and when the house is sold, but he does not in terms limit her interest in the event of the house not being sold. If he intended his immovable property why did he not use the same language as he had actually used earlier in the will to create limited interests in the personality or moveable property? The fact, that he uses different language to dispose of two' kinds of property strongly suggests that his intentions with regard to the moveable and immovable property were not the same. However, he does make provisions for the devolution of the real property similar to those for the devolution of the personal property, once the realty is converted into money or moveable property and that suggests that he only intended the limited interests to take effect if the house was actually sold.
16. Further, it is to be observed that the only restriction imposed on the widow's right to deal with the immovable property bequeathed to her is a restriction on her power of sale or disposition in her lifetime. Nothing is said as to what is to happen if the property remains unsold and there is nothing which expressly restricts her power to dispose of the property by will if not sold in her lifetime. In fact the will does not contain even an express prohibition against alienation. All it says is that if the widow desires to sell or dispose of the said house she may do so without loss to the estate in which event she is expressly given a life interest and provision is made for the devolution of the proceeds of sale after her death. From this it may, I think, be legitimately inferred that the testator intended to take away the widow's unrestricted right of alienation inter vivos, but it is difficult to infer anything more from these provisions.
17. From the language used by the testator his intention is in my judgment, tolerably clear. He intended ' his wife to take the house and other realty (if any) whilst at the same time imposing a restriction upon her power of selling or disposing of the house during her lifetime. In short, he intended to give her an absolute interest in the house and at the same time to take away from her one of the rights of an absolute owner, that is, the unrestricted right to dispose of the property at any time during such owner's lifetime. To construe the provisions of the will dealing with the house as granting the widow a life estate only in it, will, in effect, be creating a new will for the testator. As the will stands the gifts in remainder and gifts over only arise in the event of sale, whereas I am asked by the petitioner to read this part of the will as granting the widow in every event a life interest only and after her death as creating interests similar to those granted in the case of the personal or immovable property. To construe the will in this way is to do violence to the words used in the will. The intention of the testator must be inferred from what he actually wrote and not from what a Court thinks the testator intended to write. This is clear from the speech of Lord Wensleydale in Roddy v. Fitzgerald (1857) 6 H.L.C. 823:
These rules are perfectly plain and clear. The first duty of the Court expounding the will is to ascertain what is the meaning of the words used by the testator. It is very often said that the intention of the testator is to be the guide, but that expression is capable of being misunderstood, and may lead to a speculation as to what the testator may be supposed to have intended to write, whereas the only and proper enquiry is, what is the meaning of that which he has actually written. That which he has written is to be construed by every part being taken into consideration according to its grammatical construction and the ordinary acceptation of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible, to place the Court in the position of the testator.
18. This dictum has been approved of by their Lordships of the Privy Council in Venkatadri Appa Rao v. Parthasarathi Appa Rao . In my judgment the only construction which does no violence to all the terms of this will is the construction contended for by the opposite party which is that the devise or bequest of the house to the widow is a devise of an absolute interest, but with a limited restriction on alienation inter vivos annexed to it. In the event of alienation inter vivos only is the widow's absolute interest cut down and as she retained the property throughout her life she was at the date of her death the absolute owner of it.
19. In my judgment the will of James William Twalling deceased conferred upon his widow an absolute interest in the house which in the events that happened was never taken away from her and that being so, she was the absolute owner of the premises at the date of her death. Consequently the absolute interest vested in Miss Grace Edith Twalling as administratrix of her mother's estate and the house could never form part of any unadministered portion of the estate of James William Twalling deceased. As the present claim of the petitioner is expressly confined to the house it must fail as there is no unadministered portion of the estate in existence to which letters of administration can be granted. Had there been any traceable moveable property which belonged to James William Twalling deceased, different considerations would of course have arisen. Further, the provisions depriving the widow of her absolute interest in the house in the event of her selling the property are, in my opinion, repugnant to the devise or bequest itself and must be disregarded. In the words of Willes, J. in Jotendra Mohan Tagore v. Ganendra Mohan Tagore (1872) I.A. Sup. Vol. 47, at p. 395:
If, again, the gift were in terms of an estate inheritable according to law, with superadded words, restricting the power of transfer which the law annexes to that estate, the restriction would be rejected, as being repugnant, or rather, as being an attempt to take away the power of transfer which the law attaches to the estate which the giver has sufficiently shown his intention to create, though he adds a qualification which the law does not recognise.
20. The absolute bequest and the condition divesting her of her absolute interest in the event of a sale are wholly incompatible and cannot stand together. Where there is a gift with a condition inconsistent with or repugnant to such gift the condition is wholly void and must be disregarded. That being so, the condition divesting Mrs. Twalling of her absolute interest in the property bequeathed to her in the event of sale is void. Other bequests were made upon the happening of this condition and the fact that these ulterior gifts are not valid does not and cannot affect the validity of the prior bequest or gift, see Section 133, Succession Act.
21. In my view the petitioner has wholly failed to show that this house is now a part of the estate of James William Twalling deceased left undisposed of by his will and for the reasons which I have given above, I dismiss this suit with costs. Two further points have been argued on behalf of the opposite party, but it is unnecessary for me to express any opinion upon them as the points do not arise having regard to the construction which I have given to the bequest or devise in question.
22. Firstly, it was argued that assuming the will did not give Mrs. Twalling an absolute interest, it gave her a life interest and in the events that happened no interest was given to Miss Twalling as no sale of the property ever took place. Consequently it was argued that upon the death of Mrs. Twalling the house was undisposed of by the will and consequently formed part of James William Twalling deceased's estate which remained unadministered. As I have stated previously letters of administration to any unadministered portion of her father's estate were granted to Miss Twalling in 1900 and therefore it is said that all claims to this property have long since been barred by reason of Article 123, Limitation Act. Secondly, it was contended that even assuming the will gave Miss Twalling a limited interest only during her spinsterhood, that interest in the events that happened became an absolute interest. In the event of her death unmarried the property was to go to Mrs. Walker, but as she predeceased Miss Twalling it is contended that Miss Twalling's limited interest became at that moment an absolute interest.
23. As it is not necessary for the decision of this case to decide these points, I merely stated them in order to keep them open for the opposite party to urge them elsewhere if necessary. The record together with the will was sent for at the request of the petitioner. By the rules of this Court the record together with the will must be returned by the clerk who was entrusted with their production and the petitioner must of course bear all the costs connected with the production and return of the record and the will.