Lord Morton of Henryton -

This is an appeal from a judgment of the Supreme Court of Fiji dated 11th October 1946, on an originating summons in the matter of the estate of Nanhu deceased.

[2] Until his death, Nanhu carried on business as a merchant in partnership with his brother Jagannath under the style of Jagannath Nanhu and Co.

[3] Nanhu made his will on 21st August 1937, in the following terms:

"This is the last will and testament of me Nanhu son of Birma of Labasa on the Island of Vanualevu in Fiji. Merchant. I hereby Revoke all former Wills and other Testamentary writings by me heretofore made And I Declare this to be my last and only Will and Testament. I appoint my brother Jagannath Son of Birma Merchant who is also my partner to be my sole executor and trustee. I Give Devise and Bequeath unto my said trustee all real and personal property of whatsoever nature and wheresoever situate of or to which I may be entitled or over which I may have a disposing power at the time of my decease absolutely save only with the proviso that he shall, during her lifetime, allow my wife Ramdassi to live in the Dwelling house at Nasea where she and I now live and shall supply her out of my estate with money and goods sufficient to maintain her during her lifetime in the manner in which she has lived with me in my lifetime but having regard always to the state of our business and to any economic conditions which may affect the same and further that he shall himself make a Will leaving the whole of his Estate to me should he predecease me and otherwise to be divided equally between my said wife Ramdassi and Bacheoni the wife of the said Jagannath or, in the event of the death of either, to the survivor of them. Should my said brother Jagannath predecease me I Give Devise and Bequeath the whole of my estate including such property as I shall inherit from the said Jagannath and remain possessed of at the time of my decease to be divided equally between my said wife Ramdassi and Bacheoni the wife of the said Jagannath. And I Direct that if either the said Ramdassi or the said Bacheoni shall predecease me that the whole of my estate shall go to the survivor of them and, in such an event or events, I Appoint the said Ramdassi and the said Bacheoni or the survivor of them, to be my executrices and trustees."

[4] Nanhu died on 27th May 1943 and Jagannath proved his will on 3rd March 1944. The estate of Nanhu was sworn by Jagannath for the purpose of assessment of death duty thereon at £6030 17s. 5d. which, according to his Declaration, was the value of Nanhu's half interest and share in the partnership of Jagannath Nanhu and Co.

[5] Jagannath undoubtedly accepted the benefits conferred upon him by Nanhu's will, and therefore became bound to carry out the provisions beginning with the words "save only with the proviso." Between 3rd March 1944, and 17th June 1946, he took certain steps in regard to the property of Nanhu and in regard to his own property. As their Lordships are concerned only with the construction of Nanhu's will, it is unnecessary to set out these steps in detail. They are all to be found in the agreed statement of facts.

[6] On 17th June 1946, Nanhu's widow Ramdassi took out an originating summons to which Jagannath was defendant, raising certain questions as to the construction of Nanhu's will. Bacheoni, the wife of Jagannath, was not made a party to the summons. Thomson J. gave judgment in the case on 11th October 1946, but no formal order was drawn up. He decided the questions of construction partly in favour of Ramdassi and partly in favour of Jagannath, and directed that the costs of both parties, as between solicitor and client, should come out of Nanhu's estate.

[7] Jagannath and Ramdasai each obtained leave to appeal from the said judgment to His Majesty in Council, but Ramdassi abandoned her appeal. Jagannath died on 25th July 1947, and his son-in-law Jaduram, as his executor, was substituted as appellant.

[8] The only questions