SPROULE J. The settlor had already given a piece of land in Province Wellesley for the building of a mosque. He owned two more plots of land in the neighbourhood. These he purported to settle by the deed now under construction, which was drafted by some unqualified person. Ebden J. construed this deed in 1915 and seathingly animadverted upon its draftsmanship.

The learned Judge gave a final decision but left two questions open; and these come to be dealt with by me now.

I proceed to make a short analysis of the deed and of Ebden J.'s judgment.

Settlor by his deed recites the matter of the mosque already mentioned and thereafter recites his desire that his two remaining plots should be used as a burial ground or cemetery. The conjunction of his mosque and his burial ground is to be noted; also the short description of the setting up of a burial ground as being the main object of his desire.

Then he conveys the two plots for $1 to his two sons and his daughter, Mohamed Allee, Mydinsah, and Katijah Bee.

Next follow the parcels and the habendum. The three trustees (as, in common form, do all trustees) are to hold "as joint tenants and not as tenants in common".

Then come the trusts (1) of the corpus, for a burial ground, (2) of three-fourths of the income for maintenance of the trustees and their descendants in terms presently to be noted, and (3) of the remaining one-fourth of income for ceremonies, or if these are incapable of performance, for repairs to the mosque mentioned.

Follows, the term set up for the trusts, which I quote:-

"and from and immediately after each of their deaths to the use of my children and grandchildren and their respective heirs and future descendants for ever as joint tenants upon trust in manner and form as hereinbefore expressed and declared."

Then comes a restriction during the continuance of the trust - that is, for ever - against alienation.

The deed concludes:-

"But that the said land and hereditaments shall remain to continue (sic) and be possessed of (sic) by them the said Mohamed Allee, Mydinsah and Katijah Bee and by each of their future descendants hereafter as a Burial Ground or Cemetery for ever."

Ebden J. held that the incapability of performance formulated by settlor was wide enough to cover avoidance by construction of the Court; and in the result he held the alternative trust of income for repairs to the mosque for ever to be a good charitable trust and therefore not offensive to the Rule against Perpetuities.

Regarding the remaining three-fourths of income, he held that the three trustees took as joint tenants under a good gift; but that all subsequent dispositions were bad as offending the Rule against Perpetuities. He added:-

"The result is that under ordinary circumstances the corpus would have to be administered for the benefit of the next of kin of the joint tenants."

I think Ebden J. meant the next of kin of the last survivor of the joint tenants. He goes on to say:-

"But the corpus is already otherwise disposed of by the instrument and the income must follow the corpus."

Regarding the corpus, the learned Judge, whilst expressing views entitled to the highest respect, coming from such a source, but none the less obiter dicta, felt that he was not called upon to give a decision, as the Attorney General was not a party before him. He therefore left open the question whether the failure of the trust for a burial ground (its closing had been ordered before 1915) should properly result in reverter or in a cy-pres scheme. If the former, then he held that settlor's next of kin would be entitled to share three-fourths of the corpus on the death of Katijah Bee (at that date the last survivor of the joint tenants and trustees). If cy-pres, then three-fourths of the income would go to Katijah Bee and no other next of kin of settlor would have any rights under the instrument.

Thus Ebden J left open two points only (1) the destination of the corpus, at any rate as t