1. Guru Prosanna Ghose died on the 18th January 1901, leaving the plaintiff his only daughter surviving him.
2. The present suit is brought for-the purpose of determining certain questions which arise on the construction of his will.
3. The first question is with reference to a devise of a house No. 47 Baniapooker Road. It is directed that the plaintiff shall be entitled to the rents and profits of that house for her life subject to her keeping the same in repair; the rates and taxes having to be paid out of the testator's estate. No express provision is to be found in the will as to what will happen to the house in question on the determination of the plaintiff's life estate, but there is a provision directing the executors, after carrying out the provisions of the will, to sell the residue of such of the estate as consists of landed property and to make over the proceeds thereof to the University of Calcutta. In my opinion the reversion in No. 47, Baniapooker Road, expectant on the determination of the plaintiff's life interest passes under the specific residuary devise in favour of the University of Calcutta, and that the executors must sell the same and apply the proceeds as directed in the provisions of the will in favour of the University of Calcutta.
4. The second question that arises is as to what provision is to be made for the plaintiff's residence in the testator's family dwelling-house. His will contains this provision: 'My daughter, and the, widow of my nephew Dwijendra Kumar Ghose if she continues to, lead a virtuous life, shall be at liberty to live in the said house during their respective lives and have suitable rooms set apart - for their residence.
5. The executors have undertaken to provide suitable rooms for the plaintiff; no order therefore will be made as to that, bat if the parties should disagree as to the suitability of the accommodation provided by the executors, they must apply to the Court and then a reference will be ordered.
6. The third question which arises is as to the location of the Thakur. The testator, after dedicating a house to the service of the Thakur, provides: 'The said deity shall be located in my house and duly worshipped.' In my opinion 'my house' refers to the family dwelling-house in which the Thakur was located. Therefore the answer to the third question is that the Thakur is to be located in the family dwelling-house.
7. The fourth question which arises is as to a disposition which the testator has made for the purpose of endowing a shebaitship.
8. It is contended that this disposition is void under the Hindu -Law as offending against the rules laid down in the Tagore Case (1872) 9 B.L.R. 377.
9. The testator appointed his nephew Akhoy Kumar Ghose a shebait for life and after his death directed that if he left a son or adopted son, that son or adopted son should be the shebait. Then comes a proviso preferring the eldest to younger sons and giving Akhoy Kumar Ghose a power of appointment by deed or will Akhoy Kumar Ghose has a son who is not a party to these proceedings. The limitation to Akhoy Kumar Ghose is perfectly valid, and the limitation to the son who is now alive is equally valid.
10. In the present suit the question as to what may be the effect of these limitations in the event of Akhoy Kumar Ghose dying and leaving no children, without exercising the power of appointment conferred upon him, cannot be now decided; first, because one of the parties to whom the shebaitship is limited is riot Wore the Court; and, secondly, because it is not the practice of the Court to decide questions which may arise on a contingency which has not yet happened and may never happen. The question as to the legal effect of the testator's will, as far as it establishes the shebaitship, is not yet ripe for decision, because the question as to whether it is or is not valid, it is conceded, could only arise on a contingency which has not yet come to pass.
11. The next question which has arisen is whether a devise of Rs. 25,000 is void for uncertainty. The devise is in these terms: 'I also direct that my executors and trustees shall at their discretion set apart a sum not exceeding rupees twenty-five thousand for, distribution amongst my poor relatives, dependents and servants, the amounts and the persons who may be entitled to the benefit of this provision shall be entirely at the discretion of the executors whose decision shall be final.' It is contended that that devise is void for uncertainty, and. reliance is placed on the case of Morice v. Bishop of Durham (1805) 10 Ves. 522. In that case the question was whether a devise could or could not be supported its a charitable gift, and it was decided in that case that it could not. It the present devise cannot be supported as a charitable gift, then it will be void for uncertainty. If, on the other hand, it can be supported as a charitable gift, then the authorities show that it will not be void for uncertainty.
12. In interpreting the words of the devise I am bound, I think, to interpret them if I can in favour of a valid bequest, rather than in favour of an intestacy. If the word 'poor' is taken as referring not only to the word relatives, but to the words servants and dependents which follow, the bequest can be supported as a charitable bequest. Gifts to poor relatives have been supported as charitable gifts, see, for example, the case of Attorney-General v. Duke of Northumberland (1877) 7 Ch. D. 745, and the cases cited in the judgment in that case, and if a gift to poor relatives can be supported, it appears to me a gift to poor dependents and poor servants can equally well be supported.
13. Without doing violence to the language of the will, I think I may take the word 'poor' to apply to all classes of persons to whom testator expressed his wish to extend his charity, and in constriding the devises I hold that the gift of the Rs. 25,000 is a charitable gift. That heirng so, it is very like the devise in the case of Horde v. Earl of Suffolk (1833) 2 Myl. And K. 59, and it will he given effect to not--withstanding the very wide discretion which the testator has given to his executors.
14. The last question which arises on the will, is what is the residue which is given to the Calcutta University. The residuary devise in favour of that body is in these terms: 'I direct that my executors shall, after payment of all my just debts and making due provisions for the objects hereinbefore mentioned, and the costs they are likely to incur in the administration of my estate, sell the rest and residue of such of my estate as consists of landed properties and my jewellery and furniture and make over the proceeds thereof and all moneys or securities for money of which I may die possessed to the University of Calcutta for the following purposes.' Then follows a clause which it is unnecessary to specify.
15. On behalf of the Calcutta University it was contended that this devise covered in effect all the testator's moveable property. It was argued, that the words used shewed that he had intended to enumerate all the moveable property he had got to dispose of and that effect should he given to that intention. That argument cannot he supported. It would he in effect making a new will for the testator and disposing of property which he has not thought proper to enumerate. Among the property it is stated that there was menagerie, there were horses and carriages and watches and. docks; these would not pass under the specific residuary devise which I have just read. It is contended that a watch would pass under a request of jewellery. I do not agree with this submission. A watch set in a lady's gold bracelet or a watch set with gems might possibly he included in jewellery, But a watch which neither consists of precious stones ox is made of precious metal would not come with a the description of jewellery, and a watch need not be made of precious metal, and need not have, and usually has not, precious stones to adorn it, Pictures hanging on the walls, I agree, would pass under the bequest of furniture, as they are articles in use for the purpose of adorning the house on whose wails they are hung. The other articles referred to, viz., brass and bell-metal utensils, silver plates used oh ceremonial occasions, the clothes and the arrears of rent, do not come within the articles enumerated in the residuary bequest.
16. A question has arisen as to certain, shares in joint-stock companies. They in my opinion, so far as they are not secured on the property of the company by way of debentures, do not fall within the description of securities for moneys. Such shares as are secured by mortgage on the property of the company do come within the description of securities for money. That description does not apply to the case of ordinary preference shares of a joint stock company. It was suggested, without being pressed in course, of the discussion on the construction of this will, that the Court should direct what property the trustees were to set apart for the purpose of raising a yearly sum to be applied for certain religious purposes, and it was suggested that a scheme might be framed; but I do not think it is necessary for the Court to interfere with the discretion of the executors. The testator selected gentlemen in whose good sense he presumably had confidence. I do not think the Court should interfere with the exercise of their discretion, unless it is shown that the discretion is being improperly exercised. There has been no suggestion of that in the present ease.
17. The costs of all parties must be paid out of the testator's estate.
18. Mr. S. Bonnerjee. Will there be any direction to frame a scheme as to the University?.
19. It was not pressed before me. There will be liberty to apply if the parties cannot agree, or in case there is any disagreement afterwards.