The main legal point established in the judgment is the interpretation of the will and the application of the Indian Succession Act to determine specific legacies and entitlement to property based on a legacy.

1. The suit, from which the appeal arises, was instituted by Julia Mary Margaret Fernandez for an account of the rent due, in respect of a garden and Bungalow, item No. 1, in the plaint schedule and for the payment to the plaintiff after deducting all outgoings for taxes, repairs, etc., of a moiety of the net balance, The claim is based en the footing of a legacy to the plaintiff, by her maternal grand-mother Mary Magdalene Coelho, the testatrix. The will is dated 25th July 1907, and the testatrix died in August, 1908. The defendant, the daughter of the testatrix, was the executrix under that will. By her said will, the testatrix bequeathed the garden and Bungalow, item No. 1, in the plaint schedule, to the defendant, along with other properties, immovable and moveable, and also directed that half the net income from the same should be paid to the plaintiff, for life and after her death to her children. There is also a provision in the will, to the effect that, if the property should be sold, one half of the same amount should be paid to the plaintiff and the children that may be born to her.

2. At the time the testatrix made the will, she apparently believed and was at any rate contending that the whole of the garden and bungalow, item No. 1, in the plaint schedule was wholly her absolute property. But in a litigation, which terminated, Appeal No. 70 of 1910, in this Court, the plaintiffs father was held entitled to a moiety of that property, on a construction of a deed of settlement, which had been previously executed by the testatrix. As the result of this litigation, what became available out of that property, for the bequests under the will, was only the other moiety. The plaintiff has claimed the whole of the moiety remaining and the defendant has, on the other hand, set up that the moiety intended for the plaintiff and purported to be bequeathed to her was the moiety which was obtained by her father, as the result of the litigation, above referred to, and that therefore the plaintiff was not entitled to anything.

3. The learned Subordinate Judge, who tried the case, has awarded to the plaintiff one half of the net rents and profits accrued from the moiety of the property, left in the hands of the defendant, as executrix. We think the Subordinate Judge was right. It has been contended, for the plaintiff-appellant, that the intention of the testatrix was clear that the benefit, which the plaintiff would be entitled to, under her bequest, should be one half of the net income, accruing from the entire property and that bequest being a specific legacy, she was entitled not; to the one-fourth awarded by the lower Court, but to the whole of the remaining half. It has also bean argued that the defendant was, on a proper construction of the will, only a general residuary legatee and was therefore liable to make good to the plaintiff-appellant the whole amount of the bequest to her. We are unable to agree with the contention that the defendant was only a residuary legatee.

4. With respect to the moveable property she is undoubtedly the general residuary legatee; but there are no words of residuary disposition with regard to the immovable property at all.

5. The learned vakil for the appellant argued that, because in the will the testatrix has enumerated all her properties, the bequest to the defendant of the immovable properties also should be deemed to be residuary. With regard to this contention, it is sufficient to observe that the very essence of a residuary clause is that its terns should be such as to carry with the bequest of all the enumerated items, if any, all items of property belonging to the testatrix and not enumerated in the will. Though with regard to the moveable property, there is such a residuary clause! there is no such clause with regard to the immovable property.

6. The terms of Section 89 of the Indian Succession Act are quite clear on the point. The test in such cases would be this. Supposing the testat