JUDGMENT

Low Hop Bing J:

Application

This is an application by way of originating summons in encl. (1) filed by the plaintiffs as trustees of the will dated 16 July 1934 ("the will") of one Lim Kim Neo (F) ("the testratix") for a true construction of the will, underO. 80 r. 2(2)(a) and (b) of the Rules of the High 1980 .

The plaintiffs also seek the following reliefs:

1. That the second defendant be appointed to represent all or any person or class who is and may hereafter be interested in or affected by these proceedings;

2. That the trusts of the testatrix be carried into effect, and, if and so far as is necessary, administration of the trusts of the will; and

3. Costs.

Agreed Facts

All parties have agreed to the following facts:

The testatrix died on 2 April 1939, having executed the will.

Probate to the will was granted to the four original executors and trustees under the will by the High Court of the Straits Settlement of Malacca on 2 September 1939. The grant of probate was issued on 26 January 1940.

Tay Ek Seng @ Tey Aik Seng, the last of the original four executors and trustees of the will, died on 23 April 1958, leaving his last will dated 30 November 1955.

Since the last executor died testate, his executors under his will became the executors and trustees of the will, there being no break in the chain of representation:s. 12 of the Probate and Administration Act 1959 ("s. 12") .

On 30 October 1959, probate to the will of Tay Ek Seng @ Tey Aik Seng was granted to (i) Tay Say Geok (ii) Tay Say Keng and (iii) Tay Seck Huan, three of the executors and trustees of Tay Ek Seng @ Tey Aik Seng, leaving power to the fourth executor and trustee Tay Seck Loong to apply for double probate.

On 8 August 1969, all immovable properties of the testatrix were transmitted to the four trustees of Tay Ek Seng @ Tey Aik Seng. These four trustees also became trustees of the testatrix unders. 12 .

Three of the original four trustees, Tay Say Geok, Tay Seck Huan and Tay Say Keng died in 1977, 1984 and 1998 respectively.

By order of Court dated 1 March 1999, second, third and fourth plaintiffs were appointed as additional trustees of the testatrix.

Under cl. 4, the date of distribution was to be the date when the testatrix's youngest great grandson living at the date of her death attained the age of 21.

Tay Kay Chen was the youngest great grandson living at the date of her death.

Tay Kay Chen was born on 16 August 1938 and attained the age of 21 on 16 August 1959. Therefore the date of distribution was 16 August 1959 ("the date of distribution").

By cl. 6, the testatrix directed her trustees, after the date of distribution, to sell, call in and convert "... my residuary Estate into money ...", and divide the residuary Estate into five equal partsviz :

1. One-fifth to the Trustees of Choo Swee Hian School of Eng Choon district, Hokkien Province in China.

2. The remaining four equal parts, ie, one-fifth each, to her four sons "... between such of them ... as shall be living at the date of the distribution".

The testatrix had four sons namely:

(i) Teh Aik Yee - died on 31 March 1949

(ii) Teh Aik Lock - died on 1 August 1957

(iii) Teh Aik Whye - died on 25 May 1917

(iv) Tay Ek Seng @ - died on 23 April 1958

Tey Aik Seng

All the four sons of the testatrix died before the date of distribution.

A list of the sons and grandsons of the testatrix who died before the date of distribution appears at pp. 100 to 103 of exh. A, encl. 2. A list of the grandsons of the testatrix living at the date of distribution, but since deceased, appears at p. 104 of exh. A, encl. 2. A list of the surviving grandsons of the testatrix appears at p. 105 of exh. A, encl. 2.

The gift to the school in China had lapsed because the school did not exist at the date of distribution. The two gifts to the testatrix's two sons viz. Teh Aik Yee and Teh Aik Lock have also lapsed. All these lapsed gifts are collectively referred to as "the three lapsed gifts".

Agreed Questions For Determination

The parties have agreed