Vyrupulle V. Perera Et Al.,

Present: Wood Renton J. and Grenier J.

VYRUPULLE v. PERERA et al.

20-D. C. Kandy, 21,025.

Last will-Direction to executors and trustees to give rents and profits to specified persons-Executors directed to distribute, after death of legatees, rents and profits among " widows, orphans, really deserving destitute people of the Burgher community "-Vesting of property on legatees-Property seized as belonging to legatees- Claim by trustee nominated by surviving trustee.

A testator by his last will gave and bequeathed to certain specified persons all the rents and profits arising from his properties, and further directed that the share of the rents of the legatee or legatees dying should be distributed among the widows, orphans, and really deserving destitute people of the Burgher community according to the discretion and judgment of the executors.

Held (by Grenier J. and obiter by Wood Renton J.), that the trust in favour of the Burgher community was not void on the ground of its being vague.

THE facts are set out in the judgment.

Bawa, K.C., for the appellant.

Allan Drieberg (with him Vernon Grenier), for the respondents.

Cur. adv. vult.

1 (1902) 2 K. B. 743.

March 4, 1912. Wood Renton J.-

The plaintiff-appellant obtained judgment against the second defendant-respondent, Selina Ashbourne, who is now the wife of the third defendant-respondent, Richard Oswald Estrop, in cases Nos. 20,782 and 20,784 of the District Court of Kandy. In the execution of the decrees entered up in pursuance of those judgments, he seized the alleged interest of Mrs. Estrop in premises No. 47, Trincomalee street, and Nos. 1, 1a, and 2, Cross street, Kandy, under the will of her uncle, Edward Theodosius Gerlitsz. The first defendant-respondent, who is the executor of Gerlitsz, claimed the premises as forming part of the estate of his testator. The claim was upheld. The appellant consequently brings this action under section 247 of the Civil Procedure Code, and claims in his plaint (1) a declaration that Mrs. Estrop is entitled to the premises or a share thereof, and to the rents and profits thereof; and (2) a declaration that the said premises, or the interest of Mrs. Estrop therein, and her interest in the rents and profits, are liable to seizure and sale under the above-mentioned decrees. The learned District Judge has dismissed the appellant's action with costs. The present appeal is brought against that decision. Mr. Gerlitsz's will, which was made on June 28, 1877, directs (clause 1) the payment of all his just and lawful debts and funeral and testamentary expenses by the " executors hereinafter named " out of his personal estate. Clause 2 is important. It is in these terms: -

I give and bequeath to my dearly beloved sister Frederica, now the wife of Mr. J. H. Perera, to my unmarried sisters Anetha Gerlitsz, Margaret Cecilia Gerlitsz, and to my niece Selina Ashbourne, all the issues, rents, and profits arising from my real and personal property situate at Kandy, Nuwara Eliya, and Badulla, or wheresoever situate and all the interest and dividends arising and accruing from the moneys now laid out at interest on the mortgage of real property situate at Kandy and at Badulla, in equal shares and proportions, and I direct that the same be paid to them by my executors during the term of their natural life, and after the death of any one or either or all of the said legatees, I direct that the share of the rents and interest aforesaid of the legatee so dying should be distributed among the widows, orphans, and really deserving destitute people of the Burgher community according to the discretion and judgment of my executors hereinafter named.

Clause 3 directs an expenditure of Rs. 1,500 by the executors out of the estate for the purpose of placing a tablet in the Church of St. Mark at Badulla, and for the erection of a monument with a stone over the testator's grave. Clause 4 prohibits the

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