Ong (Malaya) CJ:

The testator Foo Tsoon Tse died at lpoh on 17 June 1950 having made a will on 6 August 1947 giving his adopted son, Foo Yin Toon, 1'bd out of ten shares in his residuary estate. This legatee was in China in 1947 but he returned subsequently to Ipoh where he died on 2 July 1949. Although he predeceased the testator by a year the latter made no new will or codicil.

The respondents, who are the daughters and son of Foo Yin Toon, commenced an action in 1969 against the surviving executors and trustees of the will for accounts and other reliefs. On 16 October 1970 the trustees took out a summons for determination of the question whether or not, under cll 3 and 4 of the will of the testator, the share of Foo Yin Toon had lapsed by reason of his having predeceased the testator. On 16 January 1971 Chang Min Tat J held that upon the true construction of the will the share of Foo Yin Toon had not lapsed and consequently the respondents, his children, are beneficiaries under the will. The appellants were ordered to pay the costs of the application personally. Against such decision the trustees have now appealed.

The relevant clauses in the will read as follows:

"3