Ambrose J:

This is an application by trustees of the will and estate of Lim Yew Teok, deceased, for the determination of a question arising in the administration of the estate. The will was made on 22 August 1925. The testator died on the 6 October 1925. The applicants were appointed trustees by an order of Court on 15 January 1937.

Clause 6 of the will contains six provisions. I will number them for convenience of reference. First, the testator leaves the residue of his property to his trustees upon trust for sale, conversion, payment of debts, funeral and testamentary expenses, and investment, and to hold the residuary estate until the date of distribution. Secondly, the testator directs the trustees to pay out of the income $800 a month for the maintenance of the family house and a further sum for necessary repairs or renewals, and to divide the balance of the income into ninety-five equal shares and to pay the shares to the residuary legatees.

Thirdly, the testator makes this provision:

or in the event of the death of any one or more of such legatees to the next of kin of such legatee or legatees so dead in accordance with the Statutes of Distribution.

Fourthly, the testator goes on to make this provision:

and in the event of the death of any one or more of such next of kin as aforesaid then to the next of kin of such next of kin in accordance with the Statutes of Distribution.

Fifthly, there follows this provision:

and only in the event of the complete failure of the strips of any one or more of my residuary legatees shall the shares of such original residuary legatee or legatees fall into residue.

Lastly , the testator names as residuary legatees his wife, four sons, a daughter, a grandson and five nephews, and states the shares of income to which they are respectively entitled.

The date of distribution is declared by cl 2 of the will to be at the expiration of 21 years from the death of the last surviving child of the testator. His last surviving child is Lim Boon Pin, who is still alive.

The testator's daughter, Lim Chye Inn, was one of the residuary legatees and she was entitled to twenty out of the ninety-five shares of the balance of income. She died on 22 August 1927. In British Malaya Trustee and Executor Co. Ltd. v. Chan Mek Tuan, [1937] MLJ 233 it was held by Terrell A-G CJ that the twenty shares of income enjoyed by Lim Chye Inn passed upon her death under the third provision of cl 6 of the will to her four children to the exclusion of her husband. Her four children were Lim Ah Kow, Chng Ah Dek, Chng Kiat Leng and Chng Kim Soh. Her husband was Chng Phee Lam.

Lim Chye Inn's daughter, Chng Kim Soh, died on 18 October 1941 married but without issue. In British Malaya Trustee and Executor Co. Ltd. v. Chng Phee Lam [1948] MLJ 188 it was held by Brown J that the five shares of income which passed from Lim Chye Inn to Chng Kim Soh passed upon the death of Chng Kim Soh under the fourth provision of cl 6 of the will to her father, Chng Phee Lam, to the exclusion of her three brothers, namely, Lim Ah Kow, Chng Ah Dek and Chng Kiat Leng.

Chng Ah Dek died on 3 January 1955 not having married. The trustees following the judgment of Brown J acted on the view that the five shares of income which passed from Lim Chye Inn to him passed upon his death to his father, Chng Phee Lam, to the exclusion of his brother, Chng Kiat Leng. His brother, Lim Ah Kow died on 9 September 1953.

Chng Phee Lam after the death of his wife, Lim Chye Inn, married Ong Wei Kim. He died on 5 January 1957 leaving him surviving Chng Kiat Leng and Ong Wei Kim and four children by Ong Wei Kim. The four children are Chng Heng Tat, Chng Heng Choo, Chng Heng Tee and Chng Heng Liew. They are the third, fourth, fifth and sixth defendants respectively.

The first defendant is Chng Kiat Leng, the son of Chng Phee Lam by Lim Chye Inn. The second defendant is Lim Chui Ngor, the daughter of the first defendant's brother Lim Ah Kow.

The question