Lord Thankerton:-

This is an appeal from an order of the Supreme Court of Fiji, dated 27th September 1937, on an Originating Summons issued by the appellant as the surviving trustee of the estate of George Freeman Martin, deceased, on 12th August 1937. George Freeman Martin (hereinafter called "the testator"), died on 28th July 1912, leaving a will dated 13th June 1912; he died without issue, but survived by his wife, Catherine Helen Rose Annie Martin, and a number of brothers and sisters, including a sister, Elizabeth Martin. Under his will the testator appointed his wife and the appellant, who was his nephew, to be his trustees and executors, and he thereby gave all his property both real and personal to his trustees upon the trusts set out therein. Under these trusts, after payment of debts, etc. and delivery of a legacy of livestock, and subject to the payment of certain annuities, the widow enjoyed the use of the testator's household furniture and effects and house and buildings, and the free income of the estate during her life. The will proceeds:

and as to the whole of my property remaining at the death of my wife, I hereby direct and empower my said wife to dispose of any undivided third share or interest in same by will to any person or persons and in any manner she may wish in as full and ample a manner as I myself could now dispose of such third share or interest and I direct my surviving trustee to sell and realize all of my said property remaining at the death of my wife and to apply the third of the proceeds in terms of the will of my said wife and to divide the remaining two-thirds equally amongst all my brothers and sisters now living and if any of them shall have predeceased my wife then to the child or children of such brother or sister shall be given the share such brother or sister would have received if alive.

The widow of the testator died on 21st April 1936, but she was predeceased by the testator's sister, Elizabeth Martin, who had survived the testator, but had died on 15th May 1915, unmarried and without issue. The appellant, as executor of Graham Lord Greenwood, the executor nominate of Elizabeth Martin, now represents her estate. On the death of the widow, the period of distribution of the two-thirds of the residuary estate given to the testator's brothers and sisters arrived, and a question arose as to whether the estate of Elizabeth Martin was entitled to share in the distribution; this summons was issued for determination of that question. The respondents are the brothers and sisters of the testator or person's claiming under them, and the executor of the widow. The summons was heard by Corrie C. J. who gave judgment on 27th September 1937, by which he held that the share which Elizabeth Martin would have received had she survived the testator's widow was undisposed of by the will and fell to the testator's heirs ab intestato, and he made an order of the same date to that effect, which is now appealed against. The respondents did not appear at the hearing before this Board, though they had entered appearance in the appeal. The only case referred to in the judgment of the learned Chief Justice is a decision of this Board in Browne v. Moody, (1936) AC 635=105 LJ PC 140=155 LT 469=80 SJ 814=53 TLR 5. The view of the learned Judge is expressed as follows:

It is argued, and all parties who have appeared before me have taken this view, that the facts in the present case are indistinguishable from those in Browne v. Moody, (1936) AC 635=105 LJ PC 140=155 LT 469=80 SJ 814=53 TLR 5. I am unable to accept that view.

In (1936) AC 6351 the interest which vested in one of the named beneficiaries upon the death of the testatrix was liable to divestiture in the event of the beneficiary predeceasing the life tenant leaving issue. In the present case the 'specified contingency' upon the happening of which the interest which vested in a brother or sister of George Freeman Martin upon his death is subject to divestiture