John Woodroffe, J.
1. This appeal arises out of a suit for administration of the estate and construction of the Will of one Apurba Krishna Ghose. It is alleged that certain properties (to which I will refer later) do not belong to the estate of the testator. The latter died in December 1917 leaving a will of which the first two defendants are executor and executrix. Probate was applied for and obtained of this Will on the 1st of February 1919. This suit was instituted in June 1919, that 13, some four months only after the grant of the Probate. The testator had two wives, the first of whom is now dead and the second is the defendant No. 1. He had, by his first wife, 4 sons and 3 daughters. The plaintiffs are the 2nd, 3rd and 4th sons of the testator and his eldest son is the defendant No. 2. The third defendant is a minor, Srimati Mohamaya Dasi, the daughter of the first defendant. Of the three daughters of the first wife, Priyabala, Basanta Kumari and Katyani, two, namely, Basanta Kumari and Katyani are dead. Niether Priyabala nor the heirs of Basanta Kumari and Katyani are parties to this suit. But this, though it might have been material if the conclusion at which we have arrived were adverse to that of the learned Judge on the question of the properties belonging to the estate of the testator, is not now material, for the decision to which I come is, that the judgment of the Court below should be supported and that judgment is one in favour of these persons.
2. The point which I will deal with first is the question as regards what properties constitute the estate of the deceased. The executor and the executrix have stated in an affidavit the moveabled and immoveable properties left by Apurba Krishna Ghose and to that list they have appended a note stating that items Nos. 10. 11, 12 and 20 form no part of the estate of the deceased but were held by him in trust--item No. 10 for Basanta Kumari, item No. 11 for Katyani and items Nos. 12 and 20 for Mohamaya Dasi. Exception was taken in the lower Court by the appellant to the statement, their. contention being there as here that these four items formed part of the estate of the testator. A question was also raised in the lower Court as regards item No. 24, namely, the loan advanced to one Apurba Krishna Sarkar. But this point has not been pressed before us in appeal and the statement of the executors is accepted on this point. Another objection has been taken on the ground that certain sums of money which do net appear in the list of assets should form part of the estate of the testator. These sums are Rs. 1.080, Rs. 70, and Rs. 80-4-0. The learned Judge has held as regards these sums that they do not form part of the estate and have been rightly excluded by the executors. The correctness of this conclusion has been contested before us.
3. I will deal, iii the first place, with items Nos. 10, 11, 12 and 20. In favour of the contention of the executors there is this fact that the securities mentioned in the items to which I have referred bear in the testator's writing the names of the three ladies whom I have mentioned, namely, Basanta Kumari, Katyani and Mahamaya. One of the plaintiffs, namely, Fanindra Nath Ghose, admits in his evidence that his father made notes on the investment papers for what purposes the investment was made. These notes would then go to show that they were investments made for and held in trust by the testator for the ladies named. Indeed, it is not contested that there was an intention at one time on the part of the testator that these securities should go to the ladies, but the contention is that in substitution thereof provisions were made for them in the Will. It has been pointed out that though, doubtless, these securities bear the names of the ladies for whom the investment appears to have been made there was in fact no actual transfer. It was not, however, necessary that there should be an, actual transfer, because the testator could, by a simple declaration on his part, constitute the papers in his possession a, trust for his daughters.
4. The question then is, whether there was such a declaration. There is, of course, in the first place, the fact that these papers bear the names of these ladies in the testator's writing, there is also the fact that in a statement made before the Income Tax Officer these items were recorded as trust items. It is sought to destroy the inference arising from that act by a suggestion that the father of the appellants was endeavouring to deceive the Income Tax Office. That does not seem to me to be a suggestion which should rightly come from his sons; at any rate, it is not one on which on the evidence I am prepared to act. Then, we have the fact that in the Will there is mention of the fact that the testator did hold some securities on trust. The second paragraph of the will says. 'After paying off ail my just debts and making over all deposits with me in G.P. notes and Municipal Debentures on trust to the respective parties' and so forth. With regard to this it is said on the other side that there is no sufficient evidence to connect the particular securities in items Nos. 10, 11, 12 and, so with the securities held on trust referred to in the will of the deceased. There is, however, this fact to be noted that there is no statement in the Will that the provisions which the testator was making for his daughters were in substitution of the securities which, as I have said, bear their names. It seems to me that if, as is admitted, the testator intended to benefit his daughters and actually gave their names on the securities he must have been well aware of what he had done in the matters of these securities and if his intention was to make the gift under this Will in substitution of the securities previously set apart he could have distinctly said so, for the evidence in the case goes to show that he was a very careful man. Moreover, it is to be remembered in this connection that the items are not of very great amount; two of them being for the sum of Rs. 100 each and the other two for the sums of Rs. 200 and nominally Rs. 500 only. The argument which is addressed to us by the appellants, however, loses a great deal of its force when we come to consider that the objection that these items form part of the estate was not taken 'in the first instance upon the filing of affidavit of the executors. In the reply of the appellants, objection was taken only to the omission from the list of assets, the three amounts, namely, the sums of Rs. 1,080 Rs. 70 and Rs. 80-4-0 to which I have referred, but there is no reference as regards these items Nos. 10, 11, 12 and 20. Sometime after, it is true, an objection was taken as regards notes and debentures which bear the name of Mohamaya. But even then no objection was taken that the hems 10 and 11 formed part of the estate of the testator and not a trust for Basanta Kumari and Katyani. The conclusion, there one, to which I come with regard to these particular items is, that the judgment under appeal is correct, and that the items Nos. 10, 11, 12 and 20 do not form part of the estate of the testator.
5. Then, as regards the three sums of Rs. 1080, Rs. 70, and Rs. 80-4-0 it maybe admitted here that the matter is not; so clear and that something may be said on both sides. There is, however, this outstanding fact that the accounts stood in the names of Jogindra and Jatindra and, therefore, prima facie these monies were theirs unless and until it is shown by the appellants that the apparent state of the fact was not the true state of the fact. Now in attempting to meet that inference explanations have been put forward which are by no means consistent. It was at first suggested that the testator used the names of his sons because he wanted thereby to place in the Savings Bank larger sums of money than he could deposit during the course of a year in his name. In the grounds of appeal, however, the suggestion made is that the learned Judge should have held that when the testator deposited any amount in the Savings Bank standing in the names of his sons the said amount was a loan given to the sons. If that was the case, then the question would be one of debtor and creditor and the accounts would have to be taken on that basis. I am of opinion that, having regard to the fact that the accounts stood in the names of the sons and the fact that-the learned Judge has decided this point adversely to the appellants and that no sufficient reasons have been shown for reversing his decision, these three sums do not form part of the estate of the testator. It is true that, in this connection, Jatindra, one of the plaintiffs, in whose name one of these sums stood says that the money is not his but belongs to his father. The weight, however, of that admission is lessened considerably by the fact that it is obviously to his interest to make such an admission as regards the sum of Rs. 80-4-0 when the effect of it might be to secure for the estate a sum exceeding Rs. 1,000. I hold then that the executors have in their affidavit rightly set out all items which form part of the estate of the deceased.
6. The next question is one of construction of the Will of the testator involving the question whether or not the Will has disposed of the residue of the estate. The testator after directing that his1 debts should be paid and all deposits with him in G.P. Notes and Municipal debentures on trust should be made over to the respective parties, and after realising all claims due to him and paying all necessary expenses in connection with his Will and the sum of Rs. 350 for his sradha experts mentioned then stales that in the second paragraph of the Will that the surplus, if any, should be invested in 4 per cent Calcutta Municipal debentures and should stand in the names of Jogendra Nath Ghose, Jatindra Nath Ghose and Phanindra Nath Ghose. It is to be noted that the name of Manindra, one of his sons, finds no place. Then the Will makes provisions for certain legacies in the 3rd, 4th, 6th and 7th paragraphs of the Will and in the two addenda dealing with sums of Rs. 500 given to Jogendra, Rs. 400 to Jatindra and Rs. 500 to be given towards Santilata's marriage expenses and, Rs. 100 each to the sons of Basanta Kumari and, Katyani. There is no question raised as regards the validity of the alleged legacies above mentioned. Exception, however, has been taken to the provisions in the 5th Clause which runs as follows: 'If any of my earning sons choose to live separate without their stepmother and unearning brothers he or they will not be entitled to have any portion of the interest of my invested capital. Division of my estate will not be made as long as my second wife will be alive and even in the case of her death, division will not be made till all my sons will come of age and earn their livelihood, and all my daughters are married.' Now, the first question that arises on this Will is, whether or not the testator had disposed of the residue which is left over after payment of the legacies which I have mentioned. Assuming, however, for the sake of argument that he had done so and there was a disposition of the residue under the Will, it appears to me that the provisions which are contained in the 5th Clause would be ineffective both on the ground of repugnancy to a gift made and on the ground of uncertainty. For, according to the provisions to which I have referred, the division is hot to be made until certain events happen such as the marriage of the testator's daughter and actual earning of the livelihood by the sons. These events might either not take place at all or be indefinitely postponed. Upon a reading of the whole I will come to the conclusion that the residue after paying of the legacies mentioned has rot been disposed of. That being the case, the obvious result, and one which is admitted by the respondent, is this: No restriction of this kind in the Will can affect the undisposed of property which goes as in the case of intestacy to the sons as heirs of their father. I hold, therefore, that the residue after payment of the legacies and expenses mentioned in the Will go, as in the case of intestacy, to the four sons of the deceased; that is to say, the three plaintiffs and defendant No. 2 in equal shares and they are entitled to have such equal shares, allotted to them in this suit.
7. The last and the only question remaining, therefore, is what is the residue to which the plaintiffs and defendant No. 2 are entitled. For this purpose it is necessary that the administration of the estate should continue. It appears to me that the Judge is right when he says that the plaintiffs took hasty action in coming to Court within four months only of the grant of the Probate. Under the law the executors are given six months to file inventory and one year to file accounts. It is no doubt the law that a suit for administration may be instituted before the expiry of either of these periods, otherwise an estate might be irreparably wasted or damaged. If an administration suit is brought before the expiry of the periods there must be some good ground. But no such ground appears here. In the present case certain charges of maladministration were made as regards certain properties. But we have the statement made in the cross-examination of Phanindra after seeing the four War Bonds purchased by the executors and produced before him in the cross-examination that he did not press the charge of any maladministration in respect of Government papers and debentures, etc. Then he said he pressed the charge as the aforesaid four bonds ought to have been purchased in the names of them all. The estate is a comparatively small one, consisting largely of Government Securities and debentures and security has been given to the extent of Rs. 5,000 by the executors. I think it is necessary that the administration which has been held up by reason of the action of the appellants must continue for the purpose of ascertaining the amount of the residue. I do not think that, in the circumstances of this case, we should take the administration out of the hands of the executor and executrix.
8. The learned Judge has come to the conclusion that the claim for accounts and for partition is premature. In setting aside his order on this point it is not necessary to consider whether or not the suit was competent. It could only be held that the suit is premature if it is established that the suit is wholly incompetent as distinguished from a suit which is hastily brought for which the plaintiff is liable to be mulcted in the costs. I think it is not necessary to discuss this question any further, because the parties are agreed as regards the course which should be taken, namely, that there should be a preliminary decree for administration, but that; the actual Administration should remain in the hands of the executor and the executrix and should be carried on under the direction of the Court to which both parties have liberty to apply. The executors have already filed accounts up to the 7th September 1919. They will complete the accounts up to date and file them in Court within three months of the date of the return of the record by this Court. The appellants will then be given a liberty to examine these accounts and take such objection thereto as they may be advised, the learned Judge fixing the time within which such objection should be made. When this account has been filed and objections have been taken he will consider and adjudge upon the account rendered and the objections. The learned Judge may, if he thinks necessary, appoint a Commissioner to enable him to come to a decision as regards the accuracy of this account. The appointment of a Commissioner is a matter to be determined by the nature of the objections and their number. The matter is left to the Judge's discretion. If he so chooses, he can himself determine the accuracy of the accounts. The properties must be sold for the purpose of administration of the estate and payment of the legacies, and final decree will then be made for the payment of the residue, if any, to the parties entitled to it under this judgment.
9. It was represented to us at the conclusion of the argument that the estate might suffer, if the securities held by the executors be sold at once having regard to the great depriciation of securities at the present time. It is suggested that the sale of such papers might be deferred. Bat no order can be made on such application without the consent of the persons entitled to the legacies and the residue. It is open to them to come to an arrangement by consent and then apply to the Court for such an order or after payment of the lesser legacies the parties may come to some agreement between themselves as regards the larger sums involved, but this is a matter of consent. If there be consent the matter should be mentioned to the Court for its approval.
10. I have been invited to make a declaration as regards the right of the widow as to residence. We say nothing on this point now which affects any right which the widow may possess.
11. The conclusion, therefore, is that the decree of the Subordinate Judge must be set aside and a preliminary decree for administration be made in the terms of the judgment.
12. As regards the costs of the appeal each party will bear his own costs, order as regards the costs of the First Court will depend upon the result of the examination of the accounts. If the accounts are substantially correct the plaintiffs will pay the costs of the defendants in the Court of first instance. On the other hand ii they are not substantially correct the defendants must pay such costs to the plaintiffs.
13. I agree.