Judgement

Appeal from a decree of the High Court (Jan. 11, 1904) varying a decree of Russell J. (June 15, 1903) which had granted, with costs to be paid by the respondent, probate in its entirety of the will in suit, dated October 5, 1902, to the appellants and the pro form& respondents.

The later decree varied the grant by excluding therefrom all reference to a deed-poll executed by the testator oil the same October 5, 1902, contained in the 6th clause, and also excluding therefrom the 26th clause of the will, and by directing that the costs of all parties relative to the probate proceedings should be paid out of the estate of the testator.

The will provided for the wife, bequeathed certain specific legacies, gave a power to adopt, made provision for certain charitable, trusts, with other clauses not necessary, to specify. The 6th clause recited a deed of partnership executed on August 16, 1899, in regard to the testators firm of Moolji Jaitha & Co., and the power thereby given to the testator Gordhandas to nominate a successor in his place. It then proceeded—

"And whereas by a deed-poll dated the 5th October, 1902, I have in the exercise of the power for this purpose reserved to me by the aforesaid deed of partnership and of every and any other power in this behalf me enabling appointed my wife Gungabai to take my place in the said firm and to exercise all the powers authorities and discretions which are by the said deed vested in conferred upon or reserved to me Now I hereby confirm the said deed-poll and the appointment created thereby and I hereby declare that in the event of my wife predeceasing me she shall be succeeded by my executors as provided by the said deed-poll.”

The deed-poll, however, contained this provision—

"Provided always and I hereby expressly declare that notwithstanding anything hereinbefore contained to the contrary my said wife Gungabai shall in all matters relating to the conduct and management of the business and affairs of my said firm and to the exercise and execution of the powers authorities and discretions hereinbefore mentioned always act with the assistance and co-operation of and in conformity to the advice and counsel of my solicitor Mr. Jamsetji Kavasji Patel. Provided always and I hereby declare that if my said wife Gungabai shall not be living at the time of my decease or if she dies during the continuance of my said firm I hereby nominate constitute and appoint the said Jamsetji Kavasji Patel to take my place in my said firm, and to exercise the powers, authorities, and discretions hereinbefore mentioned.”

The 26th clause of the will was in the following terms —

" And I declare that the said Jamsetji Kavasji Patel and his firm of Messrs. Mansukhlal Jamsetji & Hiralal shall be entitled to make and receive all such charges and emoluments for business whether of an ordinary professional or any other character done by him in relation to the administration of my estate or the execution of the trusts of this my will or any codicil hereto as he and his firm would have been entitled to make and receive in respect of such business if he had not been appointed one of my executors and trustees And I further declare that the said Jamsetji Kavasji Patel shall receive a remuneration of 1 per cent, on the income of my estate for the time and trouble he will have to devote in the management of my estate so long as he continues to act as my executor and trustee."

Both Courts found that the testator was of sound mind, memory, and understanding at the time he executed his will and the deed-poll. Russell J. found that the testator knew and approved of the contents of the 6th and 26th clauses of the will. The Appellate Court came to the conclusion that the deed-poll and the 26th clause of the will conferred pecuniary and other benefits on the appellant Jamjetsi, who was also appointed an executor and adviser to his widow, and that as the testator had not received any independent advice with regard to these