Administrator General Of Madras v. Money And Ors.

1. This is a suit by the Administrator-General to obtain the decision of the Court upon certain questions arising upon the construction of the will of William Garratt, who died at Bangalore in August 1888. Testator appointed Michael William Walker his executor and trustee, but Mr. Walker, after partly administering the estate by paying the debts and some of the legacies, transferred the remaining assets of the testator to the Administrator-General under the. provisions of Section 31 of the Administrator-General's Act, Act II of 1874.

2. The first defendant, F.W. Money, a minor, is the son of a daughter of the testator, who predeceased him. Defendants 2 to 7, also minors, are children of another daughter of testator, Mrs. Wilkins, who also predeceased him. The eighth defendant, G.W. Money is a half-brother of first defendant, that is, a son of first defendant's father by another wife than the testator's daughter. Ninth defendant is the Administrator-General as the administrator of the estate of Elizabeth Gertrude Wilkins, a daughter of testator's daughter, Mrs. Wilkins, who has died since the death of testator.

3. First defendant, defendants 1 to 7, eighth defendant and ninth defendant, respectively are separately represented by counsel, their interests being conflicting.

4. It is to eighth defendant's interest to uphold all the provisions of the will so far as they relate to him, for he would take nothing under an intestacy, not being one of testator's next-of-kin. First defendant would gain by an intestacy as to part of the will, for he would take an equal share in the undisposed of estate with the children of Mrs. Wilkins as a, class, and they are therefore interested in maintaining that there is no intestacy. And both first defendant and defendants 1 to 7 are interested in shutting out eighth and ninth defendants from any benefit under the will. The case has been very fully argued, and my attention has been drawn to all the authorities bearing upon the various questions that arise, which, however, have mainly to be decided under the provisions of the Indian Succession Act, which, it is admitted governs the case. The most important and difficult questions to be decided are those raised by the third and fourth issues as to what the testator calls the " Garratt Trust Fund," and, as some of the other questions depend, to some extent, upon these, I shall consider them first. Paragraph 22 of the will is as follows: "I hereby direct that my executor and trustee shall, as soon as conveniently may be practicable, having regard to payments of bequests, etc., cause a certain trust fund to be commenced and established in the said Bank of Madras at Madras to be called ' The Garratt Trust Fund,' and all monies that shall be paid to the credit of that fund shall be invested in Government of India securities and be kept in the said Bank for safe custody for the purposes of the trust to be so created. I direct that such trust fund shall never be received from deposit in the said Bank of Madras as long as that Bank shall exist."

5. By paragraphs 8, 10, 13, 14, 15 and 21, testator endows this trust fund by directing that the proceeds of sale of certain immoveable and moveable properties and the outstandings to be recovered for the estate, and the balance of a sum of Rs. 5,000, which the executor is empowered to retain to meet probate and other expenses, shall be credited to it. These directions, together with the preceding legacies, practically exhaust the testator's assets, though there is no specific residuary bequest. Paragraph 4 provides that, if first defendant dies under twenty-one years of age, a house devised to him shall be sold and the proceeds be carried to this fund. So far there is nothing unusual or illegal about the creation of this fund, except the direction that the securities representing it shall never be received from deposit in the Bank of Madras, which, as an attempt to create a fund in perpetuity, is invalid and cannot be carried out. But this does not, I think, prevent the intention of the testator to create and endow this fund being carried out. I regard it merely as an attempt to fetter the power of the executor to deal with the fund which cannot be enforced, and, disregarding this, there remains only what amounts to no more than the usual direction for sale and conversion into money of the estate and investment thereof for the purpose of carrying out certain trusts. It is when we came to the trusts, which the testator declares of this fund, that the real difficulty begins. These are contained in paragraphs 7, 11, 12 and 23. Paragraph 7 makes a provision for the payment of the passage to England, outfit and other incidental expenses of first defendant, if he wishes to go to England for the purpose of being educated there. I shall consider this later on, when dealing with first defendant's interest in this fund.

6. Paragraphs 11, 12 and 23 are as follows:

Para. 11. I hereby give, devise and bequeath to my grandchildren by my said late daughter, Elizabeth Wilkins, also to my grandson, Frank William Money, and to his step-brother, George William Money (the latter now in England), in equal shares, the benefit, interest and profit that shall arise and accrue from and out of ' The Garratt Trust Fund ' which my executor and trustee shall draw and disburse quarterly. The share in such for my grandson, Frank William Money, shall be disbursed by my executor and trustee as he shall think proper, and, if necessary, for the support and education of the said Frank William Money in England.

Para. 12. ,I hereby direct that the shares from and out of the interest or profit of ' The Garratt Trust Fund' for the children of my said late daughter, Elizabeth Wilkins, shall be paid quarterly by my executor and trustee to their father, E.S. Wilkins, Esquire, Barrister-at-Law, for their support and education on obtaining from him, on each occasion, his receipt for the amount, expressing the purpose for which the payment is received and subject at all times to the condition, which I hereby direct, that my executor and trustee shall always be fully satisfied that the moneys so paid away to him are made proper use of exclusively for the benefit, support and education of the said children, and I hereby direct that my said executor and trustee shall, at all times, see to their continued welfare unitl they attain majority, after which period my executor and trustee shall make direct payment to each of such children who attains majority and obtain receipt of such child for each payment so made.

Para. 23. I hereby direct that ' The Garratt Trust Fund' shall be a continuing fund, to all time, and that the interest and profit derived therefrom shall be received and enjoyed as expressed in this will, not only by the legatees to whom such has herein been bequeathed by me, but the same shall be inherited by any child or children of them hereafter from time to time and from one generation to another, and in accordance with all legal rights.

7. The first thing to be noted in paragraph 11 is that, as to the bequest to the children of Mrs. Wilkins, it is a bequest not to a class but to them individually. This, I think, is clear from the fact that the testator names the other two objects of the bequest, F.W. Money and his step-brother, G.W. Money, and, though he does not name the children of Mrs. Wilkins, he speaks of them " as my grand-children " and must be taken to have had, in his mind's eye, such grand-children as were then living. The children of Mrs. Wilkins, therefore, who survived testator, would take as persona designate a vested interest on the death of the testator in what is bequeathed to them by paragraph 11.

8. What is bequeathed to them in equal shares with F.W. Money and G.W. Money is

" the benefit, interest and profit that shall arise and accrue from and out of the 'Garratt Trust Fund,' which my executor and trustee shall draw and disburse quarterly."

9. Assuming the word " benefit" to be no wider than " interest and profit," as would appear from the words which my executor and trustee shall draw and disburse quarterly," this bequest of the interest would, by Section 159 of the Indian Succession Act, carry the corpus as well as the interest, unless the will affords an indication of an intention that the enjoyment of the bequest should be of limited duration. Such indication, if it exists at all, must be found in paragraph 12 or 23. Paragraphs 11 and 23 must, I think, be read together, for they contain the whole of the directions as to the devolution of the " Garratt Trust Fund." It is argued by those who contend for an intestacy that the effect of the two paragraphs is to direct payment of the income to the legatees during their lives, and, after their death, to their children and descendants " from generation to generation," as the testator expresses it, and that the whole bequest is, therefore, void as an attempt to create a succession of life interests in perpetuity. On the other hand it is argued, by those who support the will, that the words in paragraph 23, referring to the children of the legatees, are words of inheritance and not of purchase, and that their effect is to give an absolute interest in the fund to the legatees. In my opinion the latter is the correct construction, having regard to the intentions of the testator to be gathered from the whole will. It is to be observed that there is no direct bequest in paragraph 23 to the children of the legatees; on the contrary, the testator speaks of the legatees " to whom such (the interest and profit of the fund) has been bequeathed by me," and he goes on to say that " the same shall be inherited by any child or children of them hereafter from time to time and from one generation to another and in accordance with all legal rights." This, coupled with paragraph 11, is in effect a gift to the legatees and their children as their heirs. The word ' inherited ' must mean inherited from the legatees. I think, therefore, that the disposition contained in paragraphs 11 and 23, read together, comes within the meaning of Section 84 of the Indian Succession Act as a bequest to a person, with the addition of words which describe a class of persons, but do not denote them as direct objects of a distinct and independent gift, in which case by that section the object of the bequest is entitled to the whole interest of the testator therein. No doubt the testator did intend that the fund should be enjoyed by the legatees and their descendants for all time. This is shown by the words in paragraph 22 making the fund a perpetual fund, and by the words the " 'Garratt Trust Fund' shall be a continuing fund to all time " and the words " from generation to generation" in paragraph 23. In fact, he wished to create an estate tail in the fund. This he could not do, and so far his intention must fail; but that does not, I think, affect the validity of the gift to the legatees and their children, which has by law the effect of giving the legatees an absolute interest. It is merely an attempt to cut down, by a direction in the will, the absolute interest which the words used have given to the legatees. Such an attempt must fail and the legatees take an absolute interestsee the cases of Carver v. Bowles 2 Russ. & Mylne, 301, Blacket v. Lamb 14 Beav., 482, Kampf v. Jones 2 Keen, 756, Stephens v. Gadsden 20 Beav., 463, Gerrard v. butler 20 Beav. 541, the principle of which is embodied in Section 125 of the Indian Succession Act.

10. To sum up. The construction, which I would put upon paragraphs 11 and 23 of the will read together, is this. The gift to the children of Mrs. Wilkins and to F. W Money and G.W. Money is a gift to them as persona designate, and they took a vested interest in their shares from the death of the testator. The gift to them of the " benefit, interest and profit" of the fund is a gift of the whole fund by virtue of Section 159 of the Indian Succession Act, because the will affords no indication of an intention that the enjoyment of the bequest should be of limited duration; but, on the contrary, paragraph 23 contains words of inheritance which have the effect, by Section 84 of the Indian Succession Act, of giving to the legatees the whole interest of the testator in the fund. The attempt to limit this absolute interest by directions that the fund shall contine to all time and shall be enjoyed by the legatees' children,from generation to generation, is void and there remains an absolute gift of the fund to the legatees in equal shares. And the directions in paragraph 12 as to the manner in which the interest in the shares of the children of Mrs. Wilkins shall be paid during their minority and after it ceases does not, I think, prevent their taking a vested interest in their shares on the testator's death. See explanation to Section 106 of the Indian Succession Act. The above construction is, I think, a possible and not unreasonable one to put upon the words of the will, and, if so, it is to be preferred to any other, as it avoids an intestacy and carries out the obvious intention of the testator to provide equally for his grand-children and for G.W. Money, the half-brother of one of them.

11. With regard to ninth defendant, who represents the estate of a daughter of Mrs. Wilkins, who died since testator, it is argued by those who would exclude that daughter from a share in the " Garratt Trust Fund," that the gift to the legatees was a gift to them as joint tenants and not as tenants in common, and various authorities are quoted on either side of this question.

12. The general result of the authorities seems to be that the tendency of the Court is to lean against joint tenancy, especially in the construction of a will. As I have said above, in my view, the gift to the legatees by paragraph 11 was a gift to F.W. Money, G.W. Money, and the children of Mrs. Wilkins as persona designator, and the words " in equal shares " would, I think, make them tenants in common. And this construction is also in accordance with the intention of the testator evidenced by paragraph 23, that the children of the legatees should take after them, which intention, though it cannot be carried out as testator meant it to be carried out, yet may be used as a guide to his wishes in construing other parts of the will. In my opinion, therefore, the deceased daughter of Mrs. Wilkins took upon testator's death a vested interest in one-ninth part of the " Garratt Trust Fund " which has passed to her representative, ninth defendant, the Administrator-General. A case, Agnew v. Matthews 1 M.H.C.R., 17 was cited in argument, where it was held, upon a somewhat similar bequest to the children of certain persons with an invalid gift over to their heirs, that the children only took a contingent interest on their attaining twenty-one. But that case is clearly distinguishable from the present, for there was no direct gift to the children as here, but only a direction to the executors to pay them a share of the interest of the fund on their respectively attaining twenty-one.

13. One other question arises as to this " Garratt Trust Fund," and that is with regard to the provisions of paragraphs 7 and 11 of the will as to sending F.W. Money to England for education. Paragraph 7 is as follows: " I hereby direct that if my grandson, Frank William Money, desires to go to England to qualify for any profession, that my executor and trustee shall have full power to disburse from and out of the principal of ' The Garratt Trust Fund' hereinafter mentioned, sufficient money for his passage to and from England and for his suitable outfit and other incidental expenses as my executor and trustee shall deem just and proper for such purpose." And the last clause of paragraph 11 is as follows: '' The share in such for my grandson, Frank William Money, shall be disbursed by my executor and trustee as he shall think proper, and, if necessary, for the support and education of the said Frank William Money in England." Beading these two clauses together, and bearing in mind that testator did intend to tie up the share of each legatee so that it might descend to his or her children, I think the meaning of paragraph 7 must be taken to be to allow the executor in the case of this legatee only to trench upon the principal of his share for the purpose indicated, if the income, as applied under the last clause of paragraph 11, were not sufficient. Having regard to the intention of the testator to benefit the legatees equally by this fund, it cannot, I think, have been his meaning in paragraph 7 to give F. W, Money a benefit out of the fund over and above his share. In the view that I have taken of the combined effect of paragraphs 11 and 23, that F.W. Money took a vested interest at testator's death in one-ninth of the fund, the effect of paragraph 7 is only to authorize the executor to apply his share towards the expense of his journey to England and other expenses connected with his residence and education there.

14. I find, therefore, upon the third and fourth issues that the creation of the " Garratt Trust Fund " is valid as far as it provides a fund for distribution between testator's grandson, F.W. Money, his half-brother, G.W. Money, and the children of testator's daughter, Mrs. Wilkins, but is invalid so far as it seeks to make the fund a perpetual fund. That F.W. Money, G.W. Money, and the children of Mrs. Wilkins, who survived the testator, took an absolute vested interest each in one-ninth of the fund, and that ninth defendant, as the administrator of the estate of testator's deceased grand-daughter, Elizabeth Gertrude Wilkins, is entitled to receive her one-ninth share.

15. I have next to consider the question raised by the first issue as to paragraphs 3 and 4 of the will. They are as follows:

Para. 3.

" I hereby give, devise and bequeath to my grandson, Frank William Money, now a minor, absolutely my bouse and premises known as the ' Eastern Castlet' on the Mount Road, Madras, and I direct that the title-deeds thereof shall from the period of my demise be lodged in the Bank of Madras at Madras for safe keeping until the said Frank William Money, if living, shall attain the age of twenty-one years, after which period they shall be made over to his personal custody and control to do with as he may see fit,"

Para. 4. "I hereby direct that in the event of the death of the said Frank William Money prior to his completing twenty-one years of age, the said ' Eastern Castlet' shall be sold by my executor and trustee and the sale proceeds thereof shall be deposited in the Bank of Madras at Madras to the credit of ' The Garratt Trust Fund' hereinafter mentioned to be invested in Government of India securities and for the purpose of the said trust.

16. There can be no doubt that under this bequest first defendant took on the death of the testator a vested interest in the property subject to be divested by his dying under twenty-one years of age. But it is contended for him that the creation of the Garratt Trust Fund being invalid as an attempt to create a perpetuity, the gift over fails and he takes an absolute interest in the property to which paragraphs 3 and 4 relate. I have already held that the creation of the Garratt Trust Fund is only invalid so far as it is attempted to make it a fund in perpetuity. As a fund to provide for the legatees under paragraphs 11 and 23 it is well created, and is, in fact, nothing more than the usual fund directed by a testator to be created by sale of his property. There is, therefore, nothing illegal in the direction in paragraph 4 that in the event of F.W. Money dying under twenty-one years the property bequeathed to him by paragraph 3 shall be sold and the proceeds go to the Garratt Trust Fund. I must hold upon the first issue that under paragraphs 3 and 4 of the will first defendant, F.W. Money, took upon the death of the testator a vested interest in the property mentioned in these paragraphs liable to be divested in the event of his dying under the age of twenty-one years, in which event the property is to be sold and the proceeds carried to the Garratt Trust Fund.

17. The second issue relates to the bequest by paragraphs 5 and 6 of the will of testator's house at Bangalore called ' Beresford Lodge ' and the furniture in it to the children of Mrs. Wilkins. Paragraphs 5 and 6 are as follows:--Paragraph 5.

"I hereby give, devise and bequeath absolutely my house and premises called ' Beresford Lodge' at the junction of Lai Bagh Road and Fort Road, Bangalore, together with all the household furniture supplied by me therein and thereto belonging to the children of my late daughter Elizabeth Wilkins, now deceased, jointly share and share alike, and which I wish should be a home for them or any of them in Bangalore, not to be disposed of until the youngest of my said late daughter's children surviving shall attain the age of eighteen years, when the said house and premises ' Beresford Lodge' may be sold by them or the survivors of them, through the medium of my executor, and the sale-proceeds thereof shall be divided between them in equal shares share and share alike."

18. Para. 6.

" I hereby direct that the title-deeds of the said ' Beresford Lodge ' shall be deposited for safe keeping in the Bank of Madras at Madras, until such time as the property may be sold as stated in the fifth paragraph herein, and I hereby further direct that if the said children be at any time all removed from the said house, that my executor and trustee shall at once take charge of the house, premises and all the furniture therein supplied by me and belonging thereto, and shall let the property furnished to any tenants, collect and receive the rents thereof and pay the same less expenses for repairs and assessment according to his discretion towards the benefit, support and education of my said late daughter's surviving children."

This is, I think, an absolute gift to the children of Mrs. Wilkins of testator's whole interest in the property, and is not controlled by the directions in the latter part of paragraph 5 that the house shall not be sold until the youngest grand-daughter attains eighteen years of age, which must be regarded merely as an expression of the wish of the testator and not as a precatory trust. See Section 125 of the Indian Succession Act and the cases before quoted. Here also it is contended on behalf of defendants 2 to 7 that the gift is to the daughters of Mrs. Wilkins as joint tenants, and therefore that the ninth defendant as representing the deceased daughter Elizabeth Gertrude Wilkins takes nothing, but her share passes to defendants 2 to 7 by survivorship. In my opinion, this being an absolute gift to the children of Mrs. Wilkins share and share alike, and the subsequent direction that the property shall not be sold until the youngest attains eighteen years of age being of no legal effect, the children who survived the testator took each an equal share in the property which vested in them on the death of the testator. The daughter, Elizabeth Gertrude Wilkins, who died since the death of the testator, took a vested interest on his death in one-seventh share in the property bequeathed by paragraph 5 and her share is to be received by her representative ninth defendant. The postponement of the power of disposition over the property being of no legal effect there remains only the absolute gift to the children of Mrs. Wilkins ' jointly share and share alike.' Here again as in the gift of the Garratt Trust Fund, I think the children of Mrs. Wilkins take as persona designates and as they all survived the testator they took a vested interest in their shares and the share of the daughter, who died after testator, passed to her representative. I find on the second issue that the children of Mrs. Wilkins, who survived the testator, each took a vested interest in one-seventh share of the property mentioned in paragraphs 5 and 6 of the will, and that the share of the daughter Elizabeth Gertrude Wilkins passed to her representative, ninth defendant.

19. An additional issue was raised at the hearing as to the legacies given by paragraphs 16 and 17 of the will.

20. Paragraph 16 is as follows:--

"I hereby direct that my executor and trustee shall from and out of any of my monies that he may receive, retain in his hands and control a sum of rupees five hundred, out of which he will disburse various petty pensions to some poor people, who have been mentioned to him by me."

There is here a deficiency on the face of the will as to the objects of this bequest, and by Section 68 of the Indian Succession Act no extrinsic evidence can be admitted as to the intention of the testator. This legacy must, therefore, fail and fall into the undisposed of residue.

21. Paragraph 17 is as follows:--

"I hereby give, devise and bequeath in support of my temperance and reading rooms for European pensioners, and also the poor widows' quarters attached thereto, the sum of rupees ten thousand which amount shall be invested as my executor may deem most profitable and the interest or profit arising therefrom shall be paid monthly by my executor to the Chairman for the time being of the Wesleyan Mission at Bangalore, who shall be considered the trustee for the said premises, and will see to the management and upkeep of the same and the repairs thereof, and any assessment payable thereon."

22. This is a bequest to charitable uses, and the will was executed less than twelve months before testator's death. The legacy is therefore void by Section 105 of the Indian Succession Act and falls into the undisposed of residue.

23. There will he a decree declaring the right of the parties in accordance with the above findings. All parties will have their costs out of the estate. Costs to be taxed as between attorney and client and to be paid in the first place out of the undisposed of residue.