1. This is an Originating Summons for the construction of a clause in the Will of Carapiet Balthazar father of the plaintiffs. The defendants are the surviving executors and trustees of that Will. By that Will, dated 9th December 1900, the testator directed (inter alia) as follows:
I devise all my freehold property known as 'Balthazar's Buildings' situate in Merchant Street and Shafraz Road in Rangoon aforesaid unto and to the use of my trustees upon trust to pay the rents, income and profits thereof to my said two sons' (meaning thereby the plaintiffs) 'during their respective lives in equal shares as tenants-in-common, and subject thereto shall stand possessed of the said property known as Balthazar's Buildings as to one equal undivided half part or share thereof upon trust for such person or persons for such purposes and in such manner as my son the said Gregory Carapiet Balthazar shall by Will or codicil appoint, and in default of and subject to any such appointment upon 'trust for the heirs, executors and administrators of my said son Gregory Carapiet Balthazar and as to the other equal undivided half part or share thereof upon trust for such person or persons for such purposes and in such a manner as my son Balthazar. Carapiet Balthazar shall by Will or codicil appoint and in default of and subject to any such appointment upon trust for the heirs, executors and administrators of my said son Balthazar Carapiet Balthazar.
2. The facts are as stated in the plaint and I need not repeat them. At the hearing it transpired that there was a suit in the Chief Court of lower Burma at Rangoon for the construction of this Will, in which the Official Assignee was plaintiff and the present plaintiffs and others were defendants. I postponed my decision in this case until I had seen the proceedings in that suit. The prayer of that plaint was as follows:
1 'That this Honourable Court will be pleased to construe the said Will and settlement in respect more particularly to the following matters:
(a) In the events which have happened have all or any and, if so, which of the beneficiaries under the said Will and settlement elected to abide by the Will or the settlement and what is the effect of any such election.
(b) What are the respective rights of the said beneficiaries under the said Will and settlement in the events which have happened.
(c) What is the effect of the insolvency of the said Gregory Carapiet Balthazar on the devise to him by the said Will and on the power of appointment therein contained.
(d) What estate or interest, present or future, has the plaintiff obtained by virtue of the insolvency of the said Gregory Carapiet Balthazar in all or any of the property subject to the Will or settlement.
(e) What are the rights, if any, of the plaintiff in respect of the execution of the power of appointment contained in the said Will.
(2) For a declaration of the share in the property subject to the said Will and settlement to which the plaintiff as assignee of the estate and effects of the said Gregory Carapiet Balthazar is entitled.'
3. A number of the defendants filed written statements and on 13th August 1909 by consent of the parties a decree was passed. The portions material for the present purpose are Clauses (2) and (3):
(2) 'That the said G. C. Balthazar and the seventh defendant, i.e., B. C. Balthazar, have elected to take the benefits conferred upon them by the said Will and are precluded from claiming any interest in the said property (Balthazar's Buildings) otherwise than under the said Will.
(3) That the plaintiff as assignee of the estate of the said G. C. Balthazar is only entitled to a moiety or half share of the rents and the profits of the said property (Balthazar's Buildings) during the life of the said G. C. Balthazar without prejudice to the rights of any persons in remainder claiming as appointees under the. Will of the said G. C. Balthaaar or as the heirs, executors and administrators of the the said G. C. Balthazar.'
4. Subsequently on 31st August 1909 the plaintiff G. C. Balthazar bought from the Official Assignee his brother's life-interest in the rents and profits.
5. The contention of the plaintiffs is that under the gift they each took an absolute estate in a moiety of the property. I think that this is correct, see London Chartered Bank of Australia v. Lempriere (1873) 4 P. C. 572 at p. 595, 9 Moore P. C. (N. S.) 426: 42. L. J. P. C. 49: 29 L. T. 186: 21 W. R. 513: 17 E. R. 574, In re Onslow, Plowden v. Gay ford (1888) 39 Ch. D. 622: 57 L. J. Ch. 940: 59 L. T. 808: 36 W. R. 883. The case of G. C. Balthazar is plain. The only question is in the case of G. C. Balthazar whether it is affected by the insolvency proceedings or by the subsequent purchase by his brother B. C. Balthazar from the Official Assignee. On considering the matter, I hold that it is not. Both brothers are now before the Court as plaintiffs and it matters not that part of the estate of G. C. Balthazar has passed to B. C. Balthazar. Together they are entitled to the whole estate of G. C. Balthazar and that is by the form of the bequest an absolute estate.
6. It was necessary to see what had taken place in Rangoon in order to ascertain whether any question of res judicata arose. I hold that in the circumstances it did not. I accordingly answer both the questions in the summons in the affirmative. Costs of all parties as between Attorney and client out of the estate. Counsel certified.