The trust established in the will is deemed a private trust, lacking a general charitable intention, and hence cannot invoke cy-pres upon failure.

Introduction

[1] There are three (3) related appeals before us in the present case which are as follows:

i. Civil Appeal No: P-01 (NCvC)(W)-159-03/2019 ("Appeal 159");

ii. Civil Appeal No: P-02(A)-596-03/2019 ("Appeal 596"); and

iii. Civil Appeal No: P-02(NCvC)(A)-609-04/2019 ("Appeal 609").

(collectively "Appeals")

[2] The Appeals are against the High Court of Penang's decision on three (3) related actions which concern the real estate of a well-known Penangite and philanthropist, Cheah Leng Keah, the deceased as follows:

i. Civil Suit No: 21NCVC-4-01/2015 ("Suit 1");

ii. Originating Summons No: 25-98-09/2014 ("OS 2"); and

iii. Originating Summons No: 24NCVC-667-07/2019 ("OS 3").

[3] At the conclusion of the hearing of the Appeals on 14 November 2022, we adjourned our decision pending further written submissions by the parties on two points of law identified and requested by us. After receipt of the same and due deliberation, we dismissed the Appeals on 27 February 2022 with global costs of RM30,000.00 for the 1st to 5th Respondents represented by Messrs Phee Chen & Ung subject to the allocatur, and RM10,000.00 to the 6th Respondent represented by the Attorney General's Chambers.

[4] For purposes herein, we will address the parties by their names for clarity because of the nature of the dispute that involves several parties as well as several actions (but with the parties involved as plaintiff in one action but as defendant in the other two actions and vice versa).

Background

[5] David Cheah Seng Chye is the great grandson of the late Cheah Leong Keah, the deceased ("Testator") and is a beneficiary of the Testator's estate ("Estate"). He also represents the other beneficiaries of the Estate.

[6] The Testator died on 25 March 1941 testate leaving a will dated 26 November 1938 ("Will"), a codicil dated 6 March 1941 ("Codicil") and a deed of indenture dated 6 March 1941 ("Indenture").

[7] The transcribed Codicil is reproduced below:

I, Cheah Leong Keah of 65 Kelawei Road Penang declare this to be the first codicil to my Will which bears date the 26th day of November 1938.

1. I give to my trustees the sum of Dollars Three hundred ($300/-) upon the following trusts:

(a) Upon trust to divide the said sum of Dollars Three hundred ($300/-) into as many equal share as there are children of Goh Soon Chang of No 36 Macalium Street Penang (by any wife of his) living ten years after the date of my death) and to pay one or such shares to each such child who shall be __________ expiration of the ten years from the date of my death apply to my trustees for payment of his or her share.

(b) I direct that if there shall be no children of the said Goh Soon Chang living at the expiration of the ten years from my death then the said sum of Dollars Three hundred ($300/-) shall revert to and form part of my residuary moveable estate.

(c) I direct that the share of any such child who shall not apply for payment to my trustees before the expiration of the ten years from the date of my death shall revert to and form part of my residuary moveable estate,

(d) I declare that the said bequest shall not carry interest.

2. I give to my trustees the sum of Dollars two hundred ($200/-) upon the following trusts:

(a) Upon trust to pay the said sum of Dollars two hundred ($200/-) to Cheah Kee Be of 97 Tanjong Tokong Road Penang if he shall survive me and provided that he shall before the expiration, of ten years from the date of my death apply to my trustees for payment of the said sum of Dollars two hundred ($200/-).

(b) Upon trust if the said Cheah Kea Bee shall predecease me or die before the expiration often yea