1. This is a suit instituted by the Administrator General of Bengal for the construction of the Will of Dr. Henry Wilkin Jones, who died on the 8th July 1909 after having made and published his Will, dated the 14th April 1884 and four codicils dated the 22nd May 1901, 2nd March 1903, 15th December 1906 and 19th December 1908. The will and the first and second codicils were deposited according to the provisions of Section 105, Succession Act. The third codicil was registered, but was not deposited. The fourth codicil was neither registered nor deposited.
2. It is contended by the next-of-kin of the testator Thomas Gill Jones that in so far as the fourth codicil was not executed twelve months before the testator's death and deposited within six months in some place provided by law for the safe custody of wills, according to the provisions of Section 105 Succession Act, the will and codicils are entirely inoperative, inasmuch as the will must be taken to have been made on the date of the last codicil. In support of this contention Theobald on Wills, 6th edition page 145 has been quoted, but see Jarman on Wills 6th edition Vol. I. page 206. It is not correct to say that a codicil always operates as if the will was made at the date of the codicil. The codicil, unless it expressly revokes an earlier will or codicil, does not prevent its operation. I am supported in this view by the decision of Lord Campbell in Hopwood v. Hopwood (1859) 7 H. L. Cas. 728, 740, 7 and 8 Vic. Clause 97 Section 16 corresponds with Section 105 of the Succession Act. In considering the English Statute, Barton J. has held that a charitable gilt is not invalidated merely by the fact that the will containing it, is confirmed and republished by a codicil made less than three months before the testator's death In re Moore. Long v. Moore  1 Ir. Rep. 315. In that case the effect of the codicil was pro tanto to reduce and postpone the charitable gift made in the original will. In this case the fourth codicil is expressly stated as intended to be auxiliary, explanatory and supplementary to the will which was executed on the 14th April 1884, and merely provided for the residence of certain persons therein named, increasing their allowance, after revoking certain legacies, with a direction that the executor was to see that a proper monument was erected for the graves of the testator and of his wife. I am of opinion that the republication of a will does not in all circumstances erase the old date, and certainly did not do so in this particular case. I hold that the will under consideration, as modified by the codicils, is operative.
3. The parties to the suit are the Lower Circular Road Baptist Church, the Howrah Baptist Church, the Lall Bazar Baptist Church and the next-of-kin above named. To understand the contentions raised by them it is necessary to state shortly the scheme of the original will and the modifications made by the codicils.
4. [His Lordship proceeded to refer to the clauses of the will and codicils set out above and continued:]
5. Of the pecuniary legacies and annuities bequeathed by the testator other than the bequest or bequests to the Lower Circular Road Baptist Church and the alternative bequests to the Howrah Baptist Church, the Faith Orphanage and the Lall Bazar Church such of them as remain payable, the others having been revoked by one or other of the codicils or having lapsed by the death of the donees in the lifetime of the Testator, are set out in the 23rd paragraph of the plaint.
6. The annuity of Rs. 100 a month given to Anne Humphreys was paid to her during her lifetime and the arrears which remained payable at her death have since been paid to her administrator.
7. The Administrator General of Bengal has set apart sufficient funds to answer the annuities of Rs. 100 a month to Eliza Humphreys and Rs. 4 a month to Imam Bux and also the pecuniary legacies given by Clause 11 of the will, particulars of which appear in Schedule F annexed to the plaint.
8. Eliza Humphreys is now the last survivor of the three persons named in the 17th Clause of the will, as altered by the 20th paragraph of the first codicil. She is now the only person upon whose death the directions contained in the 17th clause of the will as altered by the first codicil will come into operation. She is residing in the upper flat of the testator's house No. 49 Free School Street, the lower flat of which has been leased to a tenant by the Administrator General.
9. The debts and funeral and testamentary expenses have been paid and the testator's estate in the hands of the Administrator General at the time the plaint was filed was of the approximate value of Rs. 3,30,166.
10. There are no facts in dispute in this suit and an affidavit has been put in by consent of parties containing the particulars.
11. Various questions, however, have arisen as to the true construction of the will and codicils, and the Administrator General has set them but in the 32nd paragraph of the plaint. It will be convenient to deal with them in the order therein given.
(i) The first point is about the 3rd and 4th codicils not having been deposited, as prescribed by Section 105 Succession Act. I have already dealt with it.
(ii) The second point is about the meaning of the direction in the 12th paragraph of the 1st codicil that the will is not to have any effect beyond the same being proved for at least two years from the arrival of the news of the testator's death, save and except the payment to his wile and the other persons therein named.
12. The next-of-kin contends in his written statement that the above is a direction to accumulate the income of the estate and is therefore void. I do not consider the contention sound. The words 'that the will shall not have any effect' means that no payments are to be made except to the persons named in the clause for at least two years from the arrival of the news of the death of the testator, but does not prevent the accrual of the rights of the legatees and annuitants. He contended at the hearing that if it is not a direction to accumulate, at any rate the income for the said period remains undisposed of and he is therefore entitled to it. I do not consider this contention also to be correct. It is merely a postponement of the payments directed by the testator and has the effect of giving the executor or trustee two years instead of the statutory period of one year.
(iii) The expression 'said trust funds' in the 17th and 19th Clauses of the will, in my opinion refers to the 'residuary trust funds' mentioned in the 5th and subsequent clauses of the Will.
(iv) In that view the 'trust funds' mentioned in the 19th Clause of the will far exceed the sum of Rs. 38,000. The words 'trust funds' do not simply mean the sale proceeds of the real property referred to in the 17th Clause of the will, but comprise the whole residuary trust funds subject only to the payments directed to be made thereout. I also hold that the bequest to the Circular Road Baptist Church made in that clause is valid. The direction contained in it about keeping the grave in decent order, was modified by the 17th Clause of the first codicil, which directed the trustee to look after and keep in proper repair the testator's grave and those of his wife and child paying the expenses of such repairs out of the estate.
13. The last direction was again altered by the 3rd Clause of the 3rd codicil, which directed that the wife should order a monument to be erected over his remains or in the event of her death, Miss Anne Humphreys would please do so. The cost of the monument was to be paid by the executor and trustee out of the estate. He directed that the pastor and deacons of the Lower Circular Eoad Baptist Church were to look after and keep in proper repairs the grave or graves of himself his wife and child, and they were to furnish a quarterly certificate signed by the pastor, and two of the lay deacons of the said Church testifying that they had done so, and that the grave or graves was or were in good repair. He also directed the expense of such repairs to be paid out of the estate.
14. Now it has been held that a gift for building, maintaining or repairing a monument or tomb not forming part of the fabric or ornament of a church (whether as a memorial or burying place of the donor alone or of himself and his family) cannot be supported as charitable, though such may be valid as a private trust, if not in the nature of a perpetuity. Here the direction is to the trustee to pay for the repairs in perpetuity and I consider it accordingly void and inoperative.
15. The authorities on the point are collected in the Laws of England, Vol. IV, page 118, paragraph 185, out of which the following may be referred to, viz: Hoare v. Osborne (1866) L. R. 1 Eq. 585, Mellick v. The President and Guardians of the Asylum (1821) Jac. 180 in re Vaughan. Vaugh n v. Thomas (1886) L. R. 33 Ch. D. 187 In re Rogerson. Bird v. Lee  1 Ch. 715.
16. In re Tyler. Tyler v. Tyler  3 Ch. 252 a perpetual condition in a gift to a charity for keeping a tomb in repairs was held valid when the bequest was in the following terms: 'I give to the trustees for the time being of, the London Missionary Society the sum of $$42,000 Russian 5 per cent, stock, with a rent-charge to my brother Charles. Tyler Esq. of $$1,000 a year for life. Also I commit to their keeping of the keys of my family vault at Highgate Cemetery to the (sic) care and charge, my brothers to be buried in the vault if they wish, and to use the same, if they wish, for any member of the family, the same to be kept in good repair and name legible and to rebuild when it shall require: failing to comply with this request, the money left to go to the Blue Coat School, Newgate Street, London.' Sterling J held the gift to be valid on the ground that such societies depended largely on the voluntary contributions of their supporters, and the funds required for keeping the family vault in repair might readily be obtained from persons willing to subscribe for the purpose of retaining the administration of the large fund given by the testator, without in the least trenching on any fund devoted to charitable purposes. The judgment was upheld by the Appeal Court, Lord Justice Fry holding that keeping a tomb in repair was not an illegal object, and there was ho rule of law which said that you might not try to enforce a condition creating a perpetual inducement to do a thing which is lawful.
17. Here the directions are to the pastor and deacons of the Lower Circular Road Baptist Church to look after and keep the tomb in repairs, but that the expenses of the repairs are to be paid out of the estate by the trustee. It creates a perpetual obligation on the trustee and ties up property in his hands for an unlimited time. I hold under the circumstances there is no valid trust imposed in respect of the repairs of the graves. It is a perpetuity and not charity.
(v & vi). These two have to be taken together. The provisions in the will and the first codicil in favour of the Circular Road Baptist Church are made subject to four 'further conditions' by the 7th Clause of the second, codicil, each of which I shall take separately. (a) 'That no ordained minister of the Gospel or missionary or member of the Baptist Missionary Society be ever elected as deacon of the said Church or be allowed to canvass for votes to secure his election as a deacon of the said Church.' How can the Baptist Chapel prevent people from canvassing for votes? It may be indirectly done by their having a rule that no such persons are eligible as deacons of the said Church. But the clause does not say so. It is quite clear that the testator had taken the view that missionaries were not capable business men, and he wanted to exclude them from becoming deacons of the said Church. It may be difficult to have such a rule, but it can scarcely be called an illegal or impossible one. So far as Clauses (b) and (c) are concerned, there is nothing illegal in them. The testator directed fermented and unfermented wine to be kept at the Communion Service of the Chapel---and old practices to be observed. Clause (d) is merely a direction that no money is to be paid by the executors or trustees without a quarterly certificate by the pastor and two of the lay deacons testifying that the conditions of; the will and codicil had been carefully, conscientiously and strictly observed. The Baptist Church has not so far complied with these conditions and they are not now in a position so to do. It is contended that if the conditions are operative they are not now entitled to receive any payment. It is urged on their behalf that the testator directed that no payments were to be made for a period of two years, and that they could not be asked to comply with the conditions until the time for payment arrived, and inasmuch as the plaint was filed before the expiration of the period, namely on the 17th February 1911, the matter being before the Court, they were not entitled to ask for payment, and therefore time ought to be given to them to comply with the conditions, if the Court could not modify them having regard to the fact that it was a charitable bequest. I do not think having regard to the alternative bequest made in favour of other charitable institutions, it is open to me to modify the conditions contained in the 7th Clause. So far as the keeping of two cups, one of alcoholic or fermented wine, and other of unfermented wine is concerned, the Baptist Chapel formerly used to keep both, but have discontinued the practice. There is nothing illegal in the testator wanting the old practice to be revived. He knew that the Baptist Chapel had departed from their old practice, and if the Baptist Church choose to comply with the condition there is no difficulty in the matter. They had once altered their rules, and if they thought fit they might change them again. There is nothing improper or unlawful in the testator's direction that the old practices of the chapel were to be observed, and that innovations were not to be introduced. Clause (a) also could be given effect to by interpreting the second portion of it, as meaning, that by their rules the Baptist Chapel were to declare missionaries or ordained ministers as ineligible for the office of deacons of the said Church. The Black Gown case, In re Robinson. Wright v. Tugwell  1 Ch. 95 was quoted in support of the proposition that the Court could retain funds in Court until the charity intended to be benefited was in a position to comply with the conditions imposed. The distinction between that case and the present one is, that there is in this case a gift over to other charitable institutions, and I do not think I can keep the money in Court giving an indefinite time to the Lower Circular Road Baptist Church to comply with the conditions, if they desire to do so. Even now it is not said, whether it will be possible for them to comply with the conditions. I think that the period of two years above referred, to was perhaps with the object of giving time to the Lower Circular Road Baptist Church time to revert to the old practice. I do not think the Court has power to give them further time to deliberate upon the matter. The gift-over to the other charities, I hold, is valid.
18. The orphanage has ceased to exist, and therefore one-half of the interests dividends etc. which had been set apart for the Lower Circular Road Baptist Church goes over to the Howrah Baptist Church, and the other half to the Lall Bazar Baptist Church.
19. The next-of-kin strenuously contended that the whole of the gift to the Baptist Church and other-charities failed, the contention being that the gift over might not operate within perpetuity limits.
20. The contention is based upon In re Bowen. Lloyd Phillips v. Davis  2 Ch. 491. In that case the testator had made an immediate disposition in favour of charity in perpetuity, followed by a gift over of a future interest, to arise upon an event, which need not necessarily have occurred within perpetuity limits. It was held by Sterling J. that the gift over consequently failed, audit was said that the principle established by Christ's Hospital v. Grainger (1849) 1 Mac. & G. 460 and In re Tyler  3 Ch. 252 had no application in Like cases. I do not consider the contention in this case is supported by this decision. This is a case which falls within the rule laid down in Christ's Hospital v. Grainger (1849) 1 Mac. & G. 460 and In re Tyler  3 Ch. 252. In both these cases it was held that a gift to a charity for charitable purposes, with a gift over, on an event which may be beyond the ordinary limit of perpetuities to another charity, is not illegal. The property vests in a charity and because the particular charity fails to comply with certain conditions, it goes over to another charity. In In re Bowen. Lloyd Phillips v. Davis  2 Ch. 491 it was held that the principle established in Christ's Hospital v. Grainger (1849) 1 Mac. & G. 460 and in In re Tyler  3 Ch. 252 had no application where (a) an immediate gift in favour of private individuals is followed by an executory gift in favour of charity, or where (b) an immediate gift in favour of charity is followed by an executory gift in favour of private individuals. This is not either of the two cases.
21. In re Stratheden & Campbell  2 Ch. 491. was referred to, in support of the proposition that if the gift in trust for charity, is itself conditional upon a future and uncertain event, it is subject to the same rules and principles as any other estate depending for its coming into existence upon a condition precedent. It is quite true that if the condition is never fulfilled, the estate never arises, or if it is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities, the gift fails ab initio. This principle was enunciated by Lord Selborue in Chamberlayne v. Brockett (1872) L. R. 8 Ch. App. 206, 211; but in the present case I do not consider that there is any condition precedent which prevents the estate coming into existence. The vesting in this case is immediate, but the Lower Circular Road Baptist Chapel is divested, because certain conditions cannot be fulfilled by them.
(vii). I also hold there is no intestacy as to the surplus income or any part of it during the lifetime of Eliza Humphreys.
(viii). This question does not arise, Two years have already elapsed, and it is competent to the Administrator General to pay the pecuniary legacies now remaining unpaid.
(ix). I have already dealt with the question of the repairs to the graves.
(x). The direction in the 19th Clause o the first codicil means that so far as the Poor Fund is concerned, no person is to be paid more than Rs. 20 out of the fund given by the testator. There is nothing improper in that direction or in the restriction as to the cost of the quadrennial repairs limiting it to Rs. 500.
(xi). The rent of the premises No. 49 Free School Street during the lifetime of Eliza Humphreys forms part of the residuary trust funds.
22. As these funds exceed the sum of Rs. 38,000 and the gift to the Free School has been revoked the balance enures to the benefit of the charities found entitled.
23. The only question now left is where the corpus ought to go. The testator merely devised the income, and there is no special, provision about the corpus. The question does not however now arise. The Administrator General is in possession as executor and trustee and the question will arise upon the death of Miss Anne Humphreys.
24. Section 159 of the Succession Act provides that where the interest or produce of a fund is bequeathed to any person and the will affords no indication of an intention that the enjoyment of the bequest should be of limited duration the principal as well as interest shall belong to the legatee. This section although it speaks only of the interest or produce of a fund applies equally to immoveable property. See illustration (c) to the section. A gift of income without more is a gift of the corpus, even though the gift is to the separate use or through the medium of a trust.
25. It is however contended by the Lower Circular Baptist Church that a different state of things will arise upon the death of Miss Anne Humphreys, and that they may then, if they comply with the conditions, get the whole estate. I am not prepared to say that their contention is correct, and in fact Mr. Sinha said that he could not support that contention, but I do not think it necessary now to determine this point. During the lifetime of Miss Anne Humphreys the Administrator General is to be in possession of the estate and he is to distribute the fund according to the terms of the will and codicils as construed in this case. Costs of all parties will come out of the estate. The costs of the parties except those of the next-of-kin will be as between attorney and client on scale 2. The costs of counsel appearing for the next-of-kin will be taxed on the basis of counsel of standing. All his other costs will be as between party and party on scale 2. Liberty is given to the parties to apply as and when necessary.