Cussen J:

Mervyn Farr for the applicant.The will took effect as from the date of the death of deceased, which was 29 January 1929.

On 29 January 1929, the Perak Order in Council was in full force and effect, and Chinese law and custom was recognised in the FMS (vide Recognition of Chinese Laws Order in Council No. 23/1893 Voules Vol. 1 p. 610).

This Order was repeated by Enactment No. 12/1929, known as The Distribution Enactment 1929, in August 1929.

Under the terms of the Perak Order-in-Council adoption is recognised, and adopted sons are entitled to the same legal rights as legitimate sons.And no man may will away his property from his sons.The property must be divided to a share in the property other than for maintenance and dowry.

On an intestacy in this case therefore, the devolution of any property is not governed by the Distribution Enactment 1929 No. 12/1929, incorporating the English Law on the subject, and should devolve on the two sons.

As to the gift being void for Superstitious purpose, although I relied on a Judgment of Mr. Terrell J, in Singapore Suit No. 699/1925, Low Cheng Soon & Ors. v. Low Chin Piow & Anor. 1 MLJ 15 which quoted no authorities for this decision, I found that I could not overcome the decision in the case of Bourne v. Keane, 1919 AC 815 which established that a bequest for masses is not superstitious and is further a charitable purpose.No FMS case, or any other Colony case could be found to declare a bequest of this nature was for a superstitious use.

The case of Re Yap Kwan Seng, 4 FMSLR 313 was quoted by me as an authority that the English rule against Perpetuities applied to the FMS in which Mr. Sproule, J followed the Colony cases of Yeap Cheah Neo v. Ong Cheng Neo LR 6 PC 382 and i Choa Neoh v. Spottiswoode 1 Kyshe 216 in holding that a bequest of this kind is not a charity.

I argued that the case of Yeap Cheah Neo v. Ong Cheng Neo LR 6 PC 382 and Choa Choon Neoh v. Spottiswoode 1 Kyshe 216 distinguished a case of this kind from the case of Bourne v. Keane 1919 AC 815, and that a distinction is clearly shown that the bequest is not charitable if the object is limited to the benefit of a particular person or class of persons, but is charitable as in the case of Bourne v. Keane 1919 AC 815 if the object is not so limited.

There could be no question here that the gift not being for charitable purpose, did offend the rule against perpetuities.

- In this case the testator left certain shares of his estate to his father's "Chin Shong." The question arises whether this is a good bequest.If not the further question arises as to the destination of the property so bequeathed.

As regards the bequest to the "Chin Shong" we have the authority of certain cases from the Colony and one case from the FMS.

In the case of Re Yap Kwan Seng, 4 FMSLR 313 Sproule J held that a bequest of this type was a perpetuity and that the English Rule against Perpetuities applied to the FMS He followed the Colony cases in holding that a bequest of this kind is not a charity. (Yeap Cheah Neo v. Ong Cheng Neo LR 6 P C 382 and Choa Choon Neoh v. Spottiswoode, 1 Kyshe 216 These cases all avoided declaring that such a purpose was a superstitious use although in the Colony cases West v. Shuttleworth, 2 M & K 684 was cited in support of the decisions.

Now the fact that West v. Shuttleworth has been overruled in Bourne v. Keane 1919 AC 815 was not cited in the case of in Re Yap Kwan Seng 4 FMSLR 313 The case of Bourne v. Keane 1919 AC 815 established that a bequest for Masses is not superstitious and further it seems a charitable purpose.

As regards the first point I think it is clear that the Colony cases were not decided on the ground that bequests of this kind were superstitious although in one fairly recent case this additional ground was given in holding such a bequest void.But as regards the question of charitable purpose I think that the local cases are unaffected.In Choa Choon Neoh v. Spottiswoode 1 Kyshe 216