Lord Williams, J.
1. The validity or otherwise of a clause in a will is the only question for decision in this appeal.
2. Raghumull Khandelwal died on 5th September 1926, leaving a will dated 4th September 1926, and considerable property. Clause 1 of the will is as follows:
I direct that all my debts be paid out of my estate in the first instance including the charities and subscriptions promised.
3. The will was type--written, but the words ' including the charities and subscriptions promised ' were written in ink, and initialled in the margin, apparently at the last moment, but before execution. By Clause 14 thereof the testator bequeathed property of considerable value to trustees, for the purposes of education, hospital, orphanage, social service, widows and other religious and/or charitable purposes,' to be applied as the trustees should think fit.
4. The executors issued advertisements to ascertain the names and the validity of the claims of parties to whom charities and subscriptions had been promised by the testator. Twenty--two claims, amounting in all to over six lacs of rupees, were made, mostly without any documentary proof. Of these alleged promises, no date was forthcoming with regard to three, two were alleged to have been made so far back as 1917, three in 1918, two in 1919, three in 1920, two in, 1921, one in 1922, three in 1924, two in 1925 and one of a small amount in 1926,. and less than Rs. 20,000 were alleged to have been promised since 1922. Of the total, under one lac of rupees only had been paid by the testator at the date of his death. In these circumstances, the executors decided to ask for the directions of the Court as to whether the charities and subscriptions promised, referred to in Clause 1 of the will of Raghumull Khandelwal deceased, are valid and binding and payable out of the estate of the deceased or not.
5. The matter was heard by Ameer Ali, J., and the following issues were raised, inter alia: (1) Can the provisions of Clause (1) as to ' the charities and subscriptions promised ' constitute such 'charities and subscriptions' debts provable in the administration in the manner of legal debts although they may not be legal debts? (2)If not, are they legal debts? (3)Can the clause be construed as a legacy? (5)If so, is it a valid legacy? (7) What is the true construction and effect of Clause (1) of the will?
6. After further discussion the Judge formulated the following questions of construction: (1)What can be included in debts, the word ' debts ' in an ordinary direction for payment of debts by a testator so as to constitute those claims debts provable in the administration? (2)Can the testator of his volition give an extended meaning to the ordinary significance of the word 'debts ' in his will? (3) Can Clause (1) constitute the promisee legatee? Can it be construed as a legacy? (4)If a legacy, is it valid or is it void for uncertainty?
7. It was contended on behalf of the claimants that there could be a class of debts in an extended sense, something between a debt and a legacy, and that the testator could by the terms of his will extend the class of debts. The learned Judge decided, and in my opinion correctly, against this contention, and held that the only debts which may be proved in administration are debts at law, and do not include promises made without consideration, which are not binding: 42 Ch D . 119 In Re: Whittaker (1889) 42 Ch D 119.. On the question of construction, he decided that Clause 1 should be read as follows: ' I direct my debts to be paid including the amounts and subscriptions promised to charities, and that the amounts and subscriptions promised ' were valid legacies, in the nature of limited charitable bequests, if and so far as they had been promised to charities, and he directed that an inquiry should be held to ascertain to whom such promises had been made, and the amounts which had been promised.
8. The main argument on behalf of the claimants on appeal has been based upon the maxim 'id certum est, quod certum reddi potest,' and the case of In Re: Sowerby (1856) 69 E R 935. This argument is based of course upon the assumption that Clause 1 is capable of the construction put upon it by the learned Judge. Once it has been decided that the latter part of Clause 1 means amounts and subscriptions promised to charities,' it might be possible to argue that there is no real uncertainty or ambiguity about the intended legatees, because the testator has defined them as those to whom he has promised 'amounts and subscriptions,' and these and the amounts promised to each can be ascertained by inquiry, just as debts and creditors can be so ascertained. Even so, in my opinion, parol evidence could not be admitted for this purpose: In Re: Hetley (1902) 2 Ch 866, though for reasons of equity it might be admissible to establish a trust: Blackwell v. Blackwell 1929 AC 318. It is true that where a general charitable intent is disclosed, the legacy will not fail for uncertainty of object. But no such general charitable intent is disclosed in Clause 1: the testator's general charitable intentions are disclosed specifically in Clause 14. But in my opinion the latter part of Clause 1 is not capable of the construction put upon it by the learned Judge, and that part is void for uncertainty. It is capable of several constructions, each of which may reasonably represent what the testator really intended. In the first place, it is to be noted that the 'charities and subscriptions promised' are included among debts, and are referred to in a clause directing payment of debts, and not in Clause 14 which deals specifically with charitable bequests. This may mean that only such charities and subscriptions are referred to as are of the nature of legal debts, that is to say, promises which were made for consideration and which were legally binding upon the testator. Such for example, as periodical subscriptions payable to a club or other institution under the terms of a contract of membership, or where work has been undertaken or debt incurred at the promisor's instigation, or upon his promise to indemnify, express or implied. Or it may mean that the testator regarded his--promises which only created moral obligations as being equivalent to legal debts, and wished them to be so treated by his executors.
9. Or the word 'including' may have been intended to mean 'in addition.' That is to say, the charities and subscriptions promised were to be paid as legacies, in addition to the payment of debts. The latter part of the clause may refer only to amounts and subscriptions promised to charities, as thought by the learned Judge. But the testator did not say so, and if these amounts are to be regarded as legacies, there seems to be no valid reason why subscriptions to institutions other than charitable should be excluded. It is almost impossible to say with certainty what the testator meant by the word 'subscriptions'. He may have meant only subscriptions in arrear at the time of his death, or he may have meant subscriptions which would become due in future, that is to say, he may have meant something in the nature of an endowment; because apparently some of the institutions which were brought into being as a result of his promised help could not be carried on at all, unless such help were to be continuous and permanent. Again it seems necessary to fix some limit of time during which the promises must have been made, but no indication of any such limit is given in the will. The testator cannot have intended to refer to promises which he may have made at any time during his life, perhaps many years before and long--forgotten, and if effect were to be given to such a provision, it would open the door to every kind of fraudulent claim. Yet no other limit is indicated and the Court cannot make the testator's will for him, or supply such a deficiency. It is true that of claims so far received the earliest date from no further back than 1917 if the three undated promises are disregarded, but the fact that the testator had met so few of his alleged promisees at the time of his death, seems to indicate that most of the claimants were not within his recollection or intention when he caused these words to be added at the last moment to Clause 1 of his will.
10. For all these reasons I am of opinion that the words 'including the charities and subscriptions promised' in Clause 1 of the will, cannot be given legal effect to, and that this part of the clause is void for uncertainty: that the legacies thereby given (if any) are invalid, and that the charities and subscriptions referred to are not debts, and cannot be included in that category or within the direction to pay them. To this extent only the decision of the learned Judge is modified and the decree is set aside. There is of course nothing to prevent the trustees under Clause 14, if they should think fit, from including some of these claimants among the charitable beneficiaries indicated in that clause. The appeal is allowed. Mr. H.D. Bose, leading counsel for all the charites interested, having undertaken on their behalf not to appeal against this decision, it is ordered that the Receiver do pay out of the assets in his hands the costs of all parties appearing, including all reserved costs, upon the same terms and conditions, mutatis mutandis, as were imposed by the trial Court. The Advocate--General will get his costs as between attorney and client.
11. I agree with the judgment which has been given by my brother Lord Williams. I desire however to make one or two observations with regard to one point which was put before us in connexion with the question whether in any sense and in any circumstance the testator in using the expression 'including the charities and subscriptions promised' could have had in mind obligations which might properly be comprised in the term 'debts.' It was suggested in the course of the argument before us in support of the validity of the latter part of Clause (1) Whittaker (1889) 42 Ch D 119. that there might possibly be cases where a subscription promised ' actually constituted a debt enforcible in law and we were referred in that connexion to the decision in Kedar Nath Bhattacharji v. Gorie Mahamed (1887) 14 Cal 64., where it was held that a suit would lie to recover a subscription promised, if the subscriber knew that, on the faith of his and other subscriptions, an obligation would be incurred to a contractor for the purpose of erecting a building to be paid for out of the moneys subscribed. The plaintiff in that case was a Municipal Commissioner of Howrah and one of the trustees of the Howrah Town Hall Fund. It had been in contemplation to build a Town Hall in Howrah, provided the necessary funds, could be raised, and upon that state of things being existent, the persons interested set to work to see what subscriptions they could obtain. When the subscription list had reached a certain point the Commissioners, including the plaintiff, entered into a contract with a contractor for the purpose of building the Town Hall, and plans of the building were submitted and passed; and as the subscription list increased the plans increased also and the original cost which was intended to be Rs. 26,000 swelled up to Rs. 40,000.
12. For the whole of that Rs. 40,000 the Commissioners, including the plaintiff, were liable to the contractor as well as for the amount of the original contract, because the additions to the buildings were made by the authority of the Commissioners and with their sanction. The defendant, on being applied to, put down his name in the subscribers' book for Rs. 100, and the question was whether the plaintiff, as one of the persons who made himself liable under the contract to the contractor for the cost of the building, could sue, on behalf of himself and all those in the same interest with him, to recover the amount of the subscription from the defendant. Sir Comer Patheram, C. J., and Beverley, J., held that there was
a perfectly valid contract and for good consideration; it contains all the essential elements of a contract which can be enforced in law by the persons to whom the liability is incurred.
13. On the strength of that case, it was argued before us at any rate as regards those of the claimants under Clause (1) of the will of Raghumull Khandelwal who had actually carried out or started building operations on the faith of promises made to them by the testator, they could undoubtedly benefit under the terms of Clause (1) because there had been a relationship of a contractual character between them and the deceased which the law would recognise and give effect to. It was said therefore that the testator was not mistaken in thinking that some of his promises at least would be regarded as 'debts' for the purpose of the administration of the estate after his death. With all possible respect to the learned Chief Justice and the other learned Judge who decided the case of Kedar Nath Bhattacharji v. Gorie Mahamed (1887) 14 Cal 64., just referred to, I take leave to doubt whether that case was rightly decided, particularly having regard to the decision in the English case of In re, Hudson Creed v. Henderson (1885) 54 L J Ch 811 where in circumstances similar to those of the Howrah case Kedar Nath Bhattacharji v. Gorie Mahamed (1887) 14 Cal 64., Pearson, J., in the course of his judgment said:
This is the first time when an attempt has been made, and made against a dead man's estate, to make it liable for a promise given by him during his lifetime to make a charitable contribution to any object. Certainly when I heard the case opened, I was struck with the novelty of the application. I asked whether there was any authority for it and I was told that there was none.
14. Later, the learned Judge says:
Mr. Cookson admitted very fairly at the be--ginning that, unless he could show that there was a legal debt due from the estate of the testator, he had no case at all, and it was, therefore, necessary for him to shape the case so as to satisfy the Court that there was a positive legal contract entered into by the testator to pay the whole of this sum of 20,000 which rendered the estate of Mr. Hudson liable for so much of the 20,000 as was not paid by him during his lifetime.
15. Later in the judgment the learned Judge stated:
'I am utterly at a loss to ascertain that there was any consideration.'
16. Again, he says:
The whole thing from beginning to end was nothing more than this: an intention of this gentleman to contribute to the fund and an intention of the Committee, so long as the different members of it remained members of that Committee, to dispose of that fund according to the purposes for which it was contributed. There really is in this matter nothing whatever in the shape of a consideration which could form a contract between the parties.
17. I respectfully agree with the views expressed by Pearson, J. It is to be noted that this decision was given in the month of May 1885 and the decision of Sir Comer Patheram was given only about a year later. The probability is that having regard to the length of time required for communication between England and India in the light is that English case was not brought to the attention of this Court when the Howrah case was being heard. I make these observations in order to emphasise what my learned brother has already said with regard to the impossibility of construing the clause under consideration as being a direction to pay debts. The terms of the clause are too vague and uncertain and obviously susceptible of such a variety of interpretations for the Court to give effect to them as constituting a gift as the nature of a legacy. I agree that this appeal must be allowed and the judgment of the learned Judge as regards his decision on Clause (1) set aside. The question of costs is reserved till this day three weeks when this case will be set down 'To be mentioned.'