HYNDMAN-JONES CJ

This is an originating summons (adjourned into Court for argument) which was taken out by Mohamedeen Latifa and Ahamed who are infants and three of the next-of-kin of Hadjee Esmail bin Kassim deceased for:-

(1) A declaration that the trusts of the Will of the said deceased dated the 6th April 1900, so far as they relate to the income of a one third share of his property, are void for uncertainty.

(2) A declaration that the next-of-kin under the Statutes of Distribution are entitled to the income of the shares as on an Intestacy.

(3) In the alternative that the Court should declare who are entitled to such income, and for what purposes it should be applied, and in what shares.

(4) A declaration that the trusts of the Will so far as they relate to the ultimate destination and corpus of the said share are void for uncertainty.

(5) A declaration that the next-of-kin under the Statutes of Distribution are entitled to the corpus of the said share as upon an Intestacy.

Hussain Beebee the executrix and trustee of the Will, was the party against whom the summons was directed; subsequently the Attorney-General, the Registrar, and one Mootto Kurpen Chitty, were added, the first under s. 57 of "The Crown Suits Ordinance 1876"; the second to represent the relations living at the expiration of 21 years after the death of the last surviving child of Hadjee Esmail; the third as Assignee by way of mortgage of the trust fund.

The infants sued by their next friend Mohamed Salleh, and were represented by Mr. G.S. Carver; the Attorney-General and Hussain Beebee appeared in person; while the Registrar and Mootto Kurpen Chitty were represented by Mr. Van Someren.

His Lordship, after stating the terms of the will, proceeded -

Mr. Carver submitted that the testator obviously had in contemplation five distinct purposes -

(a) Ceremonies to be performed in his honour.

(b) Alms to the poor.

(c) Pilgrimages to Mecca.

(d) A yearly remittance of such sum as his trustee should think proper to his brother and sister in India.

(e) A provision for the maintenance of any of his children and their descendants and other relatives who might be in indigent circumstances.

and he contended that, with the exception of the yearly remittance to India for the brother and sister, the trusts were void for uncertainty: (a) and (c), because, he said, they were not only not charitable, but because also the quantum was indefinite and unascertainable; (b) because, although charitable the quantum was also indefinite; (e) because, although it was partly charitable, it was uncertain and indefinite both as to the objects and the quantum.

On the other hand the Attorney-General, while agreeing with Mr. Carver that the testator had in contemplation five distinct purposes, contended that the trusts were not void for uncertainty; first, because on the wording of the trusts there was no uncertainty, the wording implying that they should be at the discretion of the trustee; and, secondly, because this trust, although five objects are mentioned, is a general trust in favour of charity if due regard be paid to the prefatory words "it being my wish and desire that the said share should be considered as a Wakaf or property set apart for charitable purposes."

With regard to the first contention I am unable to see that any discretion has been vested in the trustee as to the amount to be expended in the various objects except, of course, with respect to the yearly sum that should be sent to the brother and sister in India; and the question appears to turn upon whether we can regard the prefatory words as constituting a general trust for charity binding the whole share.

In my opinion we cannot so regard them because the function of the Court is to ascertain the intention of a testator so far as that intention can be ascertained by the whole of the language he has used; and, although the testator has said that he desired this third share should be conside