Rigby J:

By an Indenture dated the 8 May 1912, one Tye Kee Yoon conveyed a substantial part of his real estate to six of his close relatives upon trust to establish a charitable trust to be known as "The Tye Kee Yoon Charity" upon the terms and for the express purposes contained in that trust deed. Under the terms of the trust, out of the income arising from the trust the head trustee, after retaining 50f the gross receipts as remuneration for the trustees, and subject to a discretion to maintain a reserve fund to meet extraordinary outlay for repairs, rebuilding, rates, taxes and assessments, was directed at the end of each Chinese year to pay the balance to the following institutions, that is to say:

One-tenth thereof to Lam Hua Ee Hospital in Penang, One-tenth thereof to Si Teong Hek Toong School in Penang, and the balance of such monies shall be divided in the discretion of the said Head Trustee and in such proportions as he may think proper amongst the following Hospitals and Schools in China, viz:

Sam Hoe Ee Kwan Hospital and Sam Hoe Hak Toong School at Sam Ho Pa in China.

Joon Sin Hak Toong School, Leong Tean Sio Hak Toong School Taipu, Ee Khiok Hospital and Moh Hak Teong School at Taipu in China, and Swatow Ee Kwan Hospital in Swatow in China.

The trust deed further provided that:

In the event of there being any other new Schools or Hospitals in the aforesaid places in China being subsequently opened the Head Trustee shall have full discretion and authority to include the same amongst the above.

Under the terms of the Trust the Head Trustee was required to pay:

The said monies to the Treasurer, the Trustee or head man (Kehtio) for the time being of the said Institutions, and his receipt shall be a sufficient discharge to him.

By an earlier will dated 30 January 1912 the settlor had appointed his four sons and his adopted son as his executors and, subject to various bequests and legacies, had directed them to make a distribution of the property on the expiration of twenty-one years after the death of the longest liver of his named existing grandchildren. In the meantime the moneys arising from the estate was to be expanded in accordance with the terms and provisions of the will. It is to be observed that 200f that income was to be expended in Chew Shin Cha Yeung in China in specified proportions on education, hospitals, roads, ferries and bridges and alms giving.

The deceased died in 1919 and probate of his Will was duly granted.

The question now before me for determination is as to the true construction of the trust deed of 1912 and as to whether that part of the trust providing for a distribution of 8/10ths of the surplus of the income to the specified schools and hospitals in China is void for impossibility of performance. If it is void for impossibility of performance then the question arises as to whether it can properly be inferred that there was a general intention on the part of the settlor to devote this part of his property for charitable purposes generally and whether this Court, in order to give effect to that professed intention, should order that the income be diverted from the Chinese trust to the benefit of the named school and hospital in Penang or to other Federation charities in accordance with a scheme to be settled cy-pres, or whether there is a complete failure of the Chinese trust and accordingly a resulting trust in favour of the estate of the deceased. If there is a resulting trust then the subsidiary question arises as to whether it is in favour of the residuary legatees or the next of kin.

The main ground put forward for holding that the trust was void for impossibility of performance was that this country did not recognise the Government of Communist China, and since there was no diplomatic means of communication between the two Governments there was no power whereby the trustees or the Courts of this country could ensure that the trust was being properly carried out. In t