JUDGMENT

Jenkins, J. - As this action was originally framed, it was alleged that various breaches of trust had been committed and consequent relief was claimed. When, however, the matter first came before me as a result of discussion that then took place, the charges of misconduct were withdrawn, and the claim resolved itself into one for construction of the will and administration.

2. The testator, whose will gives rise to these proceedings, is one Hari Das Dutt, a wealthy Hindu, of the Sudra caste, and a resident of Calcutta, who died in October 1875, leaving a sole widow, the defendant, Sreemutty Surnomoyo Dassee, and two married daughters, the defendants, Sreemutty Premmoye Dassee and Sreemutty Banee Money Dassee. The first named of these daughters at the time of her father's death had three sons, the defendants. Radha Prosad Mullick and Kasi Prosad Mullick, and one since deceased; s(sic) also has had two sons born after her father's death, the defendants, Pea(sic) Lal Mullick and Behari Lall Mullick. The other daughter, I am told, has (sic) no children.

2. On the 30th of October 1875, the day of his death, Hari Das Dutt execute his last will, and its contents are set out at length in the second paragraph c the claim. By it he appointed his wife, his father, Babu Madhu Suda(sic) Dutt, and his uncle, Dwarka Nath Dutt, to be his executrix and executors, and of these the testator's wife and uncle alone proved the will. The father apparently never performed any executorial duties or intermeddled in the management of the estate, but at the same time he never expressly renounced probate. On the 9th of August the widow, with the consent of Dwarka Nath Dutt, purported to take a boy of five, named Jatipersaud Mullick, in adoption as the son of the testator in pursuance of a power in the will, to which it will be necessary later to refer at length, but this adopted son died on the 29th of January 1881 when he was only ten years old.

3. On the 1st of April 1877 the testator's father died, and on the 9th of February 1881 the plaintiff's natural father purported to give and the testator' widow purported to take the plaintiff, then a boy of eight, in adoption as the son of the testator, the executor, Dwarka Nath Dutt, being present on the occasion and consenting. This adoption, like the former, was intended (sic) in execution of the power contained in the testator's will, and it is adr(sic) that prior to this action the legality of the adoption had never been cal question: on the contrary the plaintiff has throughout been brough(sic) and treated as the duly adopted son of the testator. It will here be conv(sic) to refer to those portions of the will which are especially relevant to the points raised in this case. In Clause 2 the testator says:

I appoint my wife, Sreemutty Surnomoye Dassee, the executrix, and my father, Babu Madhu Sudan Dutt, of Mullick's street, aforesaid, and my uncle Babu Dwarkanath Dutt of Thuntonneah in Calcutta, aforesaid, the executors and trustees of this my will.

4. Clause 8 provides as follows:

Whereas having no son born to me of my body I am desirous of adopting one in my lifetime, but in case I depart this life before carrying such my desire into effect I hereby authorise and empower my wife and executrix, Sreemutty Surnomoye Dassee, and my executors and trustees to whom I give full permission and liberty to adopt after my decease a son, and in case of his death during his minority or on attaining his full age and without leaving male issue to adopt a second son, and in case of his death during minority or on attaining such age and without leaving male issue to adopt a third son and no more. In any of the above cases of adoption should the adopted son die leaving a son or sons, the power of adoption shall cease or remain in abeyance during the life or livestime of such son or sons of such adopted son, but shall revive on the death of such son or sons during minority.

5. Clause 9 is as follows:

I direct my executors