Whitley AGCJ:

These are two appeals from the judgment of Gordon Smith J in an Originating Summons which raises a question of construction arising out of cl 11 of the Will of Cheang Keng Quee deceased.

The Testator died in 1901.

Cl 11 reads as follows:

On the death of the survivor of all my said sons the said trust property shall be held by my said Trustees in trust for all the sons of my said sons (including adopted sons as above provided) who shall attain the age of 21 years or marry under that age the said son or sons of each of my said sons taking (and if more than one equally between them) per stirpes and not per capita a share proportionate to the share of the income of the said trust property to which his or their parent (or adopted parent) may have been entitled during his life-time under this my Will.But the said Trust Fund shall not be distributed or any share thereof paid out to the persons entitled until the youngest of the grandsons (or adopted grandson) shall have attained 21 or married under that age.

Cheang Thye Phin the last surviving son of the Testator died on 29 March 1935.It will be observed that the beneficiaries under this clause are "sons of sons". For the purposes of convenience I shall in this judgment refer to them as "grandsons". Eighteen such grandsons are now living and they are the Defendants in this Summons.Some are of age and some are infants.

As the result of previous litigation it is definitely settled that the eighteen Defendants are the grandsons who take under this clause and that they are entitled to the whole of the corpus in certain shares which are also definitely ascertained.The only question remaining to be decided is whether the concluding words of the clause whereby the Testator Seeks to cut down the trust constitute a direction to which the Court will give effect or whether that direction is contrary to some rule of law and therefore nugatory and incapable of being carried out.That in effect is the question which the Court is asked to decide in this Summons.

I agree with the learned trial Judge that it was clearly the intention of the Testator to prevent the dissolution of his estate and the distribution of the corpus for as long a period as the law permitted.If effect is given to the postponement words the corpus will not be distributed until the youngest son of Cheang Thye Phin attains the age of 21 or marries under that age.If by reason of their offending against some rule of law those words are struck out then, as from the date of Cheang Thye Phin's death, such grandsons as have attained the age of 21 or have married before that age are entitled to an immediate payment of their respective shares of the corpus and the remaining grandsons at present under age and unmarried will similarly become entitled to payment of their shares of corpus as and when they attain twenty one or marry under that age.

But however clear the intention of a testator may be the Court will not give effect to it if it is contrary to some rule of law.In this case the Testator has been careful to keep within the rule against perpetuities but the appellants contend that by attempting to postpone the time of enjoyment by beneficiaries after having made an absolute gift to them he has offended against the rule of law which was thus stated by Page Wood, VC in Gosling v. Gosling, 70 English Reports p. 423:

The principle of this Court has always been to recognize the right of all persons who attain the age of twenty-one to enter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by the testator to the effect that they are not to enjoy it until a later age - unless, during the interval, the property is given for the benefit of another.If the property is once theirs, it is useless for the testator to attempt to impose any fetter upon their enjoyment of it in full so soon as they attain twenty-one.And upon that principle, unless there is in the will,