Judgement

Appeal from a judgment (August 12, 1919) of the Supreme Court of the Straits Settlements, Penang, affirming a judgment of Woodward J.

The suit was brought by the respondent on February 25, 1916, in the Supreme Court and related to the estate of one Khaw Soo Cheang, a Chinese resident) in the Straits Settlements who died in 1882 ; the executors of the will, represented by the appellants, were defendants. The respondent, one of the next of kin, by her plaint claimed a declaration that certain trusts, dispositions, and directions contained in the will were void, and that the part of the estate thereto allocated should be distributed as on an intestacy.

The facts, including the material terms of the will, also the terms of the Limitation of Suits Ordinance

(VI. of 1896), upon which the decision of the appeal depended, appear from the judgment of their Lordships.

The trial judge (Woodward J.) held that the gift to the " kong lin " was void as a perpetuity, that there was not an absolute gift charged with an invalid condition, and that there was an intestacy as to the " kong lin." He held that the suit was not barred by the Ordinance, because in his view time did not begin to run until the gift had been declared void by a competent Court.

The decision was affirmed on appeal. Ebden J. held that time did not begin to run until an intestacy had been declared by a decree not subject to appeal. Sproule J. dissented from that view, but held nevertheless that the suit was not barred. In his view s. 10 applied. Maltby J. in substance agreed with Sproule J.

1921. Oct. 20. Upjohn K.C., F. B. Fuller, and W. E. Cleaver for the appellants. The suit was barred by the Limitation of Suits Ordinance, 1896, Sch. II., art. 99, whether time ran from the death of the testator, from 1898, or from the time when the estate was ready for division. The view that time did not begin to run until a Court had set aside the trust is erroneous. The word "payable" in art. 99 is not confined to payment in the course of administration. Sect. 10 of the Ordinance does not apply. That section is in the same terms as s. 10 of the Indian Limitations Act (IX. of 1871), which it has rightly been held in India applied only to suits to enforce a trust specifically created Balwant Rao v. Puran Mai (( 1883) I. L. R. 6 All. 1.); Kherodomoney Dossee v. Durgamoney Dossee. (( 1878) I. L. R. 4 Cal. 435.) An executor is not a trustee for the next of kin In re Lacy. ([ 1899] 2 Ch. 149.)

Disturnal K.C. and Gavin Simonds for the respondent. The suit was not barred by the Ordinance. If, contrary to the respondents contention, art. 99 applies, the period of twelve years did not begin to run according to the terms of the article until the distributive share was "payable." The executors were bound by the directions of the will until the trust was set aside by a competent Court. Further, until the residue was ascertained no distributive share was payable Barnardos Homes v. Special Income Tax Commissioners ([ 1921] 2 A. C. 1.) ; In re Johnson. (( 1885) 29 Ch. D. 964.) No residue was ascertained until May, 1904, when the beneficiaries entered into a deed defining their respective rights under the trust. But having regard to s. 10, the suit was not barred by any article of the schedule. The trust being void the executors were vested with the share of the residuary estate as trustees for the next of kin ; that was a specific purpose within the meaning of s. 10 Salter v. Cavanagh (1 Dr. & Wal. 668.); Patrick v. Simpson. (( 1889) 24 Q. B. D. 128.)

Upjohn K.C. in reply referred to Cooper v. Cooper. (( 1874) L. R. 7 H. L. 53, 64, 65.)

Oct. 21. The judgment of their Lordships was delivered by

LORD BUCKMASTER. The real question that arises on this appeal is whether the respondent is disentitled by lapse of time from maintaining the proceedings which she instituted on February 25, 1916, for the purpose of obtaining (1.) a declaration as to the effect of a gift for yearly and other sacrifices