STEVENS J. This suit was instituted on the 2nd September 1927, by the plaintiff as representing the estates of two of the next-of-kin of Cheang Keng Quee deceased against the defendants, of whom the first is the executor, and all are trustees of the deceased's will. The deceased's grandsons, though not parties, are represented. Cheang Keng Quee died in 1901 leaving a will which was duly proved. The plaintiff claims payment of seven-thirty-sixths of eight-twentieths of the fund representing the corpus of the testator's residuary estate. That corpus is devised to certain persons by Clause 11 of the will; but the plaintiff contends that by reason of the events which have happened there is an intestacy as to a portion of the corpus so devised, and that that portion passes to the next-of-kin.

By clause 7 of his will the testator bequeathed his residuary estate unto his trustees to stand possessed of it upon trust to pay the income to the persons and in all shares therein mentioned and by Clause 11 of the will he directed that on the death of his last surviving son the corpus of the property should be held in trust for the sons of certain sons who attain the age of twenty-one years or marry under that age; and the clause proceeds to describe the proportions in which the grandsons referred to are to take.

Some of the devisees of shares of income contained in Clause 7 have failed, because the testator omitted to provide for the contingency of any of his sons dying without leaving a natural or adopted son; and it is admitted that, out of the twenty shares into which the testator divided the income pending the distribution of the corpus, eight have lapsed and become vested in the next-of-kin. The plaintiff contends that on the true construction of Clause 11 of the will there had been a corresponding lapse of eight-twentieths of the corpus; and it is a portion of that eight-twentieths of which he now claims payment.

The claim for immediate payment would appear to rest on the assumption that the plaintiff, if he can show a vested right to an aliquot share of both income and corpus, can now demand payment of that share without regard to the testator's directions for postponement of distribution. But the principle of Saunders v. Vautier Cr. & Ph. 240, 10 LJ Ch. 354, Affirming 4 Beav. 115, is not, I think, applicable to a share of general residue, not severed from the rest of the testator's property. If I am right in this, all the plaintiff can now obtain is a declaration of his rights; but I conceive that this is a case in which the Court could properly make a merely declaratory order, whether or not it entitles the plaintiff to any immediate further relief.

Before dealing with the main question of construction I will notice three grounds of defence which were argued on behalf of the defendants.

The first of these is that the matter in issue is res judicata as against the plaintiff. The ground of this contention is that on an originating summons issued in 1912 for the determination of certain questions of construction arising out of the will, the Court decided the question now in issue in a manner contrary to the plaintiff's contention; that the next-of-kin whom the plaintiff represents became parties to those proceedings in 1914 after the judgment of the Court of Appeal had been pronounced, and that they became bound by that judgment because they took no steps to apply to have it set aside.

Now, I have carefully perused the originating summons and the judgments, both of the Court of first instance and of the Court of Appeal, and I can find therein no support for the defendants' contention. The originating summons asked for the determination of eleven questions. The first two were as to whether certain directions for accumulation were void under the Thellusson Act; the next two were as to whether certain provisions of the will were void for uncertainty; the next as to whether certain provisions infringed the rule against perp