SPROULE J

Ho Tiang Wan, hereinafter called the testator, executed his will on 20th November 1912. He died on 25th June 1914, and the will was proved on 2nd September 1914 by his widow Quah Sin Kiat Neoh and his two older sons, Kim Kee and Kim Tek, the executrix and executors named therein.

Testator divided his residuary estate by clause 33 of the will between his three surviving natural and lawful sons, namely, Kim Kee and Kam Tek abovementioned, and Kim Hok I set out the clause.

33. "I direct that my Trustees shall stand possessed of all the rest and residue of my estate real and personal whatsoever not hereby otherwise disposed of Upon Trust to divide the same into ten (10) equal shares and to pay four (4) of such shares to each of my said sons Ho Kim Kee and Ho Kim Tek and two (2) of such shares to my said son Ho Kim Hock by three equal payments to each the first seven, the second fourteen and the third twenty-one years after my death And in the event of the death of any of my said sons before or after my death leaving issue his share shall be divided in the manner following that is to say to pay a sum of dollars ten thousand ($10,000) from the share of such son so dying to the widow of such deceased son and the balance and residue of his share of the whole thereof if there should be no widow shall be divided between his children in the proportion of two shares to each son and one shares to each daughter of such deceased son And in the event of any of my sons dying leaving no issue surviving him then and in such case I direct a sum of Dollars Ten thousand ($10,000) from the share of such son so dying, shall be paid to the widow of the deceased son and the balance and residue of his share shall fall into and form part of my residuary estate and the same shall be divided between the survivors of them according to their proportion as aforesaid in my said residuary estate."

Kim Hok died intestate in June 1916, two years after testator, leaving him surviving a widow, Lee Hoon Eng, and one daughter, Ho Guat Joo, still an infant, his only next-of-kin.

The first seven-year period of distribution directed by clause 33 expired five years later on 25th June 1925. Kim Kee and Kim Tek then each received their one-third-of-four-tenths share in the residue. As for Kim Hok's one-third-of-two-tenths, Kim Tek swore in an affidavit filed on 22nd March 1922 in O/S. 181/22 as follows:-

"The Executors have paid to Lee Hoon Eng $10,000 out of the share of the said Ho Kim Hok as directed in the said clause, and the said Lee Hoon Eng has claimed that Ho Guat Joo is entitled to the balance of such share. The Executors are however advised that it is a matter of doubt whether under the terms of the said clause Ho Guat Joo is entitled to the whole balance of Kim Hok's share or only to one-third thereof. The Executors desire the decision of the Court as to how they are to deal with the share of the said Ho Kim Hok."

O.S. 181/22 was filed the same day, propounding a series of questions. Question VI, arising out of Lee Hoon Eng Neoh's claim on behalf of Ho Guat Joo was thus formulated.

To whom in the events which have happened the share of Ho Kim Hok under clause 33 of the said Will is payable.

O.S. 181/22 came before me for decision. I delivered judgment on 11th June 1922. Question VI was in terms so wide that it was open, for instance, for Kim Kee to argue that Kim Hok's share had vested in Kim Hok indefeasibly and so passed to his next-of-kin. No such question was, however, raised before me. The sole issue then submitted to me was whether Ho Guat Joo should take the whole or take only one-third of the balance of the share after payment of $10,000 to Lee Hoon Eng. I decided in favour of the whole.

The parties to O.S. 181/22 are all before me in the present suit by themselves or their proper representatives. The present suit is brought by Kim Tek, now sole surviving executor and trustee. His mother died in December 1922, and his brothe