1. (Petheram, C.J., and Tottenham, J.; concurring)--This was a suit brought by one Okhoymoney Dasee, the widow of a person named Hurrynarain Mullick, who died on the 25th December 1860, having previously made his will. She claims to be entitled to her husband's property as his heir, and asks in the first place, practically,, that the will be set aside. Then in the alternative she prays, notwithstanding the will, to have it declared that there has been a failure in the provisions of the will, and, consequently, an intestacy under which she is entitled.
2. The defendant is a brother of the deceased, and claims to be entitled under the provisions of the will of the deceased to the property left by him. A second defence was raised, viz., that whether the will did or did not give the property to the defendant, the plaintiff's suit is barred by limitation.
3. The learned Judge who heard the case came to the conclusion that, notwithstanding the terms of the will, the plaintiff as his heiress-at-law was really entitled to his property, the property not passing to the defendant under the will; but he held, on the other band, that the plaintiff's suit was barred by limitation, and accordingly dismissed the suit. Before us the argument has gone on both of these questions, and I propose to deal with the principal question--the question which goes to the merits of the case, viz., under the will and in the events that have happened, who really did become entitled to this property The terms of the will, so far as they are material, are these: 'I appoint my brother Nilmoney Muilick my sole executor of my estate and effects after my my decease, who shall pay all my legal debts and collect all out standings;' and then it goes on: 'My wife is supposed to be in the family way. Should she bring forth a male issue, in that case he will be my sole heir of my property and effects on his attaining proper age. If, on the other hand, she is delivered of a female child, all the expenses of her marriage and maintenance till that period should be defrayed from my estate. I also wish that she shall receive a legacy of a Government four per cent, promissory note for Company's rupees two thousand on her attaining proper age.' Then comes the important clause: 'In case my son dies before attaining proper age, all my estate and property should be taken possession of by my brother Nilmoney Muilick.' He then goes on: 'My wife is to receive a Government four per cent. promissory note for Company's rupees one thousand as legacy, and she is to be maintained from my estate if she continues to live in our family dwelling-house under my brother's protection.' He also gives Rs. 200 to the District Charitable Society, and there the will ends. The precise portion of the will which we have now to construe is that in which he says, in case the son dies before attaining majority all his estate should be taken possession of by his brother Nilmoney Muilick. But that clause cannot be construed unless it be read in connection with the other clauses of the will.
4. The first question with reference to that clause is: Is it a clause purporting to give any property to Nilmoney at all, or, is it, as the learned Judge in the Court below has held, only a clause relating to management. I think it is a clause purporting to give the property, and I think so principally for these reasons. By appointing Nilmoney as executor of the will, and directing satisfaction of certain charges out of the property, I think, whatever may be the legal position of an executor according to the ordinary rules of Hindu law, he meant to give the executor such powers of management as were necessary for discharging those duties which be has imposed upon him by the will. Amongst those duties is the duty of providing for the maintenance of the widow, and the maintenance and marriage expenses of the daughter. And that maintenance was to be provided by Nilmoney, and by nobody else, as appears clearly from the condition as to the widow residing under his protection in the family dwelling blouse. Thus by appointing Nilmoney as executor of this will he bad, as it seems to me, already given him all the power of control that was necessary for the purposes of the will. To me it appears that if you read the latter clause which is said to be one of mere management, as a clause of mere management, you practically give no effect to that portion of the will, because, as I said before, all the powers necessary for carrying out the trusts of the will had been given already, and no powers of mere management not necessary for the purposes of the will could be given as against an heir-at-law who claims not under the will but adversely. The result would be to reduce the provision to a dead letter, and we ought not to construe the clauses of a will in such a way as to bring about that result, if we can construe them in such a way as to make them operative. There are other clauses of the will tending to show that the words in question are a gift of property. In the first place, I do not agree with the learned Judge who heard the case in thinking that the specific legacies and bequests given to the widow and daughter afford no indication that the property has passed away from them. I think the provision for the maintenance of the widow and marriage expenses of the daughter tend to show, putting aside the legacies, that they were not to take the larger estate which they would take successively as heiresses, and which would of course include everything that was given them. The clause, again, which says that the widow is to be maintained if she continues to live in the family dwelling house, and under the protection of the brother, seems to me very strong to show that the brother was to be her protector by reason of his possessing the property. I think, therefore, that the clause is a clause purporting to convey the property and not to give the mere management of it.
5. The next question, then, is, has that clause taken effect in the events which have happened? In order to see that we have to read that clause with the prior clause purporting to give an estate to the son who the testator hoped might be born. I think it is important that in this country we should certainly not be more strict in construing wills than are the Courts in England. On the contrary, I think it is our duty, and it has been so laid down repeatedly by the Privy Council, to endeavour in the case of every will to find out what the real intention of the testator was which he intended to express in his will, and to look to that rather than to the precise language he has used. Here is a man about to die leaving his wife pregnant; he is unable to tell whether the child which is in the mother's womb is a boy or a girl, and he has a brother. He, therefore, makes a will giving the property to the child in certain terms, and then gives a gift over to the brother. If we can give effect to the apparent general intention of the testator to give his estate to the child, if the child should be a boy, and to the brother if a boy did not take, or if the estate to the boy failed, we are bound to do so in accordance with the principle repeatedly laid down and acted upon in the Courts in England in construing wills, and especially in the well known case of Jones v. Westcomb 1 Eq. Cas. Abr. 245, and other cases which may all be found collected in Williams on Executors, Part III, Book III, Chapter 2, Section 6 Consequently, I think, we are bound to hold that the gift over to the brother takes effect on failure of the first gift, in whatever mode that failure takes place, even if it be not in the precise manner expressed in the terms of the gift. The precise mode contemplated in the terms of the gift was the son's dying before reaching his 21st year: I think we should give effect to the gift over when the first gift fails by the male child never existing.
6. Then what were the gifts to the child and to the brother? Speaking for myself, applying the principles on which, I think, wills should be construed, and reading the two gifts together. I should feel little hesitation in saying that, if the event bad turned out as the testator hoped, the effect of the will would have been to give a vested estate to the child from the testator's death, with a gift over to the brother on that estate failing for any cause. If this be so, it seems to me to follow that the first intended estate failed at the time of the testator's death. There was an uncertainty about the fact, because it could not then be known what was the sex of the child in the mother's womb, but the child was a girl and not a boy; and therefore the estate, which it was intended to give to the possible boy, failed, and failed then. The consequence was that the second gift in favour of Nilmoney took effect then. But supposing this not to be the true construction of the will, and supposing the testator ought to be considered to have contemplated giving a vested estate to the child on his birth, still I think the result would be the same, for I think the gift over to Nilmoney operated so as to pass to him everything that did not pass under the first gift. In any view of the case, therefore, it appears to me that this his a clause purporting to give the property to Nilmoney ; that in the events which have happened that gift has taken effect, and did so on the death of the testator, although the fact could not be ascertained until the birth of the child.
7. As regards that part of the case which relates to the question of limitation, on which the Judge in the Court below decided the case, I desire to guard against saying anything which could seem like dissent from the view which the Judge has expressed. In the view that we have taken of the principal question it is unnecessary to deal with that question. I think that this appeal must be dismissed with costs.