Judgement

Appeal (No. 19 of 1943) from a judgment and decree of the High Court in its civil appellate jurisdiction (January 8, 1942), affirming a judgment and decree of that court in its ordinary original civil jurisdiction (May 23, 1941).

The question for determination in this appeal was whether, as held by both courts below, the bequests under the will of Edward Abraham Sopher hereinafter mentioned in favour of his unborn grandchildren were valid, or whether, as the appellants contended, they were invalid by reason of the provisions of ss. 113 and 116 of the Indian Succession Act, 1925. The following facts are taken substantially from the judgment of the Judicial Committee The questions raised in this appeal related to the construction of the will of Edward Abraham Sopher, a resident in Calcutta, domiciled in British India, who had carried on the business of a stock and exchange broker in that country. His will was dated April 16, 1926. He died on February 24, 1939, leaving him surviving a widow, the second respondent, and two sons, the appellants. The sons were of age at the date of his death, but unmarried. He had no children who predeceased him. On May 1, 1939, probate of the will was granted to the first respondent, the Administrator-General of Bengal, the sole executor and trustee of the will. By his will the testator, after certain bequests of the goodwill of his business and of other property not material to the present appeal, proceeded to dispose of his residuary estate by some very elaborate and somewhat confusing clauses. After the usual trusts for conversion, the trustee was directed to stand possessed of the residuary estate upon trust out of the income to pay the testators widow a monthly sum of Rs. 1,500 for her own use and benefit during the term of her natural life. As to the balance of the income, the trustee was directed to hold and stand possessed of the same " Upon " trust during the life-time of my said wife to pay the balance " of the net income thereof (after payment of the said monthly " allowance of Rupees one thousand and five hundred to my " said wife) to my children, if more than one, in shares such " that each male child shall take double the share of each " female child, and if there shall be only one such child the " whole of such balance of income shall be paid to such one " child. And if any child of me shall die in my life-time or " in the life-time of my said wife leaving children or a child " him or her surviving the share of the said balance of income " which would have been payable to the child so dying had " he or she been living, shall during the life-time of my said " wife be paid to his of her children, if more than one, in "shares such that each male child take double the share of " each female child, and if there shall be only one such child " the whole of such share of the said balance of income shall " be paid to such one child. And if any child of me shall die in the life-time of my said wife without leaving any children " or child him or her surviving the share of the said balance " of income which would have been payable to the child so " dying had he or she been living shall during the life-time “of my said wife be paid to such of my children as shall " survive the child so dying and the said child or children of " such of my children as shall have predeceased the child so " dying in shares such that males shall in all cases take double " the shares of females and the child or children of any such " predeceased child shall take only the share which his her or " their deceased parent would have taken, if living, and if " there shall be only one child or one grandchild of me who " shall be entitled to the benefit of this provision, then the “whole of such balance of income shall during the life-time " of my said wife be paid to such one child or grandchild as " the case may be."

The testator had been dealing in that clause with an annuity to the widow and the surplus income wh