1. This appeal raises a question as to the construction of the will of one Nicholas Isaac Malchus. The 5th Clause of that will says:
I direct my executor to invest the sum of Company's Rupees seven thousand in the purchase of Company's Papers and to stand possessed thereof in trust by means of the income of the sum to provide a fund for or towards the education of two or more boys at Saint Paul's School, Calcutta, to be from time to time nominated for that purpose by the trustee for the time being of this my will, such boys to be natives of Calcutta, of poor and indigent parents or fatherless children of Armenian or other Christian religion, and such income to be paid to the Governors, Trustees or Managers of the school for the time being for the purpose of such education, and I direct that no boy shall be eligible for admission to the benefit of this provision at an earlier age than seven or at a later age than twelve, nor shall he continue the enjoyment thereof after he shall have attained the age of seventeen, though entitled to its benefit up to then, and whenever a vacancy shall occur either by the removal of any such boy at the age aforesaid, his earlier death or from any other cause, the trustee for the time being of this my will shall fill up the vacancy by appointing some other boy of the character and qualification hereinbefore in that behalf stated, and each boy admitted to the school shall be subject to the government and discipline thereof.
2. It appears that during the life of the testator St. Paul's School, Calcutta (which was a day school) was closed, and St. Paul's School, Darjeeling, opened in its stead, under the same management and with the aid of the same funds as the older school. The Darjeeling school is a boarding school, and therefore the costs of each pupil is much higher than that of the day scholars in Calcutta. The plaintiff alleges that by reason of the closing of St. Paul's School, Calcutta, the trust in para. 5th of the will has wholly failed, and that the fund has become part of the residuary estate of the testator, The plaintiff having a life interest in that residuary estate claims the fund accordingly.
3. We agree with the learned Judge who heard the case that the plaintiff's contention is quite groundless. The trust was not one for St. Paul's School, Calcutta. Had it been so, the question whether the present school is sufficiently a continuation of the old to receive the gift might have been material. But the trust is for the education of boys to be chosen and sent to the school. If, therefore, the school has ceased to exist, another mode must be found of giving effect to the governing intention of the testator. If the old Saint Paul's School can be said still to exist it has at any rate so far changed its character, that it would be difficult, if not impossible, to employ the trust funds in sending boys to it, as contemplated by the testator. The inquiry ordered is therefore necessary, and the decree made must stand.
4. The only other question is as to costs. Under ordinary circumstances the suit would simply have to be dismissed with costs. But there is an agreement embodied in a consent order to which effect must, if possible, be given. It was to the effect that the Administrator-General should retain his own costs, and pay the costs of all other parties out of the estate of Nicholas Isaac Malchus.
5. The residuary estate of Nicholas Isaac Malchus is not before the Court, and the order cannot be construed as one dealing with that estate generally. If it were, effect could not be given to it.
6. We think, on the whole, the order should be construed as the learned Judge construed it, as an agreement between parties with reference to the residue, so far as they could properly dispose of it by agreement, that is to say, the plaintiff's interest in the residue.
7. We dismiss the appeal with costs; the costs to be charged as those in the first Court have been.