SPROULE ACJ - Ana Mohamed Hussain, hereinafter called "the testator", died possessed of immovable property consisting of eighteen pieces of land in Singapore, each with messages thereon situated; and also of movables which included a wholesale and retail cloth-shop business, dealing principally in sarongs and piece-goods obtained from European importers, and trading under the style of Ana Mohamed Hussain & Co.

The testator on 1st August, 1903, admitted his two managers of Ana Mohamed Hussain & Co., Mydin and Yusop, as working partners therein for a term of twelve months. They contributed no capital, but were to receive shares in the profits in consideration of their services.

These articles were not reduced into writing until 17th January, 1904. Testator was then in expectation of death. He executed a Will on 15th January, the partnership agreement two days later, and a Codicil to his Will on 18th January. He died six days later, on 24th January, 1904.

The Will and Codicil directed payment of testator's funeral expenses and of a number of pecuniary legacies. Payment was also directed of a mortgage-debt due to Mr. Shohst out of a fund specially deposited with Ana Mohamed Hussain & Co. and earmarked for the purpose of this payment. Six lots of land and messauges were specifically bequeathed to three infant daughters (Respondent being one). The executor was directed to convey and transfer these immovables forthwith into the names of the three infants but to retain the title-deeds for twenty years before handing them over, adding the rents and profits meanwhile to the general fund created by the Will.

The only other provision of the Will and Codicil I cite empowered the executor, at the termination of the Mydin and Yusop partnership on 31st July, 1904, to continue the cloth-shop business for three years in partnership with testator's son Mohamed Mydin and any other partners the executor might choose.

The sole executor was testator's elder brother, Ana Mohamed Tamby. I refer to him hereinafter as "the executor" or simply as "Tamby". He was absent in India when testator died, and delayed his return to Singapore until July, 1904. He had formerly been a partner himself in the business of Ana Mohamed Hussain & Co., and presumably had some acquaintance with its affairs.

He suffered the Mydin-Yusop partnership to run its course until determined by lapse of time on 31st July, 1904. The business then reverted to and became part of the estate of the testator. The executor elected not to exercise the power of continuance given by the Will and Codicil, but to sell it as a going concern. He would have been justified in carrying it on for that purpose for a reasonable time, if that was for the benefit of the estate. Such continuance, however, proved unnecessary, because Mydin and Yusop were willing to purchase and take it over forthwith as a going concern and with continuity of management. On 3rd August, 1904, accordingly, an agreement was executed, and the appellants state that the purchasers then took over (or continued) the conduct of the business. The price remained to be determined by valuation and the formal assignment of the goodwill and book debts until the executor should have extracted probate. The executor obtained a grant of probate on 15th August, 1904, accordingly; but, in the events that happened, letters of probate were not extracted until 14th August, 1907. I wish to say at once that I am not satisfied that this could not have been done before, say, February, 1905.

The valuation, however, was completed before the middle of September, 1904. The business was valued at $37,535.57 gross. Mydin and Yusop agreed to take over and pay the debts, in consideration of which the purchase price was reduced to the very moderate sum of $2,267.74. Appellant's counsel tells us (although the evidence on the point is not clear) it was agreed that if any debts to the firm, written off as bad debts, should nevertheless fructify, the