Judgement Appeal (No. 148 of 1923) from a decree of the High Court in its Appellate Jurisdiction (August 2, 1922) varying a decree of the Court in its Original Jurisdiction. The appeal arose out of an originating summons taken out in the High Court for the construction of the will of a Parsi named Rustomji Edalji Dadachanji, who died on July 17, 1913. The parties to the summons were the testators widow Ratanbai (the plaintiff, respondent No. 1), his brother (the executor and the present appellant), and respondent No. 2, the testators daughter by a predeceased wife. The testator left him surviving a son who was born after the date of the will and died in infancy. The material terms of the will appear from the judgment of the Judicial Committee. There were three main questions on which the opinion of the Court was required—namely (1.) Whether a bequest of the residuary estate in favour of the testators son was vested or contingent on his attaining majority. (2.) Whether if the bequest was vested it was divested by the death of the son before attaining majority. (3.) Whether if the bequest was contingent there was a gift of the residuary estate to the appellant, or the testator died intestate in regard thereto. Both Courts in India held that the bequest to the testators son was contingent within the meaning of s. 107, but they differed as to whether it came within the exception. The trial judge (Kanga J.) held that it did not, but upon the wording of the material clauses the appellate Court (Shah and Pratt JJ.) held that it did. On the conclusion come to by the trial judge as stated above it was not necessary for him to consider the second question. On the third question he held that there was a good gift of the residue to the appellant and he passed a decree in accordance with that construction. The appellate Court held on the second question that the residuary estate having vested under the exception to s. 107, there was nothing in the will to divest it on the death of the testators son; and, on the third question, that on the occurrence of this event the estate passed to the first respondent as his heir subject to her obtaining letters of administration. 1924. July 30. 1924. July 30. Upjohn K.C., Sir George Lowndes K.C. and E. B. Raikes for the appellant. M. R. Jardine and B. J. T. Gibson for the first respondent. [Reference was made to Dinbai v. Nusserwanji Rustomji (( 1922) L. R. 49 I. A. 323.) and Norendra Nath Sircar v. Kamalbasini Dasi. (( 1896) L. R. 23 I. A. 18.)] Oct. 28. The judgment of their Lordships was delivered by LORD CARSON. The only question which this Board is asked to decide is whether upon the true construction of the will dated July 10, 1913, of a Parsi named Rustomji Edalji Dadachanji, who died on July 17, 1913, a bequest of the residuary estate in favour of his son since deceased was vested or contingent upon his attaining his majority. The clauses of the will which are material for the determination of this question are in the words and figures following— "(5.) My present surviving wife Ratanbai is now in the family way. And she has expressed in my presence her free will and accord to live as a member of the family with my executor, i.e., my elder (or eldest) brother Doctor Kavasji Edaljee Dadachanji. As to whatever children (or child) that may be born of her womb, my brother shall bring up and maintain the same. And my said executor shall defray all the expenses in connection therewith out of my property and effects. And he shall maintain the family. (The expression maintenance of the family includes that of the maintenance of my said executor also.) Should a daughter be born of the womb of my wife Ratanbai, she shall be brought up and maintained and shall be educated properly and my executor, or after his death his executors or executrices, shall after making outlays in accordance with my circumstances get her married at a proper place (i.e., in a suitable family). Should a son be born he also shall be cherished and maintained, and educated and brought up. And when he comes of age my executor or after his death his executors or executrices shall make over the whole of my remaining properties to the said son. Should a son be born he also shall be cherished and maintained, and educated and brought up. And when he comes of age my executor or after his death his executors or executrices shall make over the whole of my remaining properties to the said son. Should the child (whether daughter or son) born of the womb of my wife, die in tender age (i.e., a minor) and should my wife for any reason whatever be unwilling to live as a member of the family with my executor, then my executor shall out of my property purchase bonds for rupees five thousand bearing interest at four percent, at the market rate and shall transfer the same to the name of my said wife Ratanbai. " 14. After having defrayed all the household expenses out of the income of my punji (property), as to whatever there may remain over my executor shall, if he thinks proper, expend the same in giving encouragement to education and the works of science and arts as well as in erecting troughs for cows (and) cattle to drink water from. "15. As to my property (or properties) and lands at Nasik and Kherwadi and as to my share in my paternal property and punji situated at Navsari, I bequeath the same also to my executor my brother Dr. Cawasji Edalji Dadachanji. And I annul and cancel the right of my heirs from all those. "16. My executor shall make such use thereof as he may think proper. He is the owner of all those. As to the whole of the effects and furniture chattels in my home and the goods and property whatever there may remain over after payment of the above Warsas, I bequeath the same to my said executors." The parties are governed by the Indian Succession Act (X. of 1865), the material section of which is in the following terms "107. A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.... A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.... until the condition has been fulfilled, the interest of the legatee is called contingent.....Exception—Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent." Both the Courts in India held that the bequest to the testators son is contingent within the meaning of the first clause of s. 107, a decision with which their Lordships agree. The main contention, however, before this Board on behalf of the contesting respondent was that the terms of the gift came within the exception contained in s. 107. The trial judge held that the case did not fall within the exception to s. 107. The appellate Court, however, took a different view, and held that by reason of the exception "the bequest in favour of the son was vested in interest at the date of the testators death/ It is necessary, therefore, to examine the clauses referred to in the will to see whether the fund is bequeathed to the son " upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age or directs the income, or so much of it as may be necessary to be applied for his benefit." In the first place it is to be noticed that there is no direct gift to the son, but only a direction to hand over, not any particular fund, but the whole of the testators "remaining properties" when the son comes of age. Nor is the income of such "remaining properties" to be employed in any way in accordance with the terms of the section absolutely for the 6on, nor is it directed that the income, or so much of it as may be necessary, should be applied for his benefit. That would be impossible, as the "remaining properties" are not in any way ascertained or ascertainable see In re Gossling. ([ 1902] 1 Ch.945; on appeal [ 1903] 1 Ch. That would be impossible, as the "remaining properties" are not in any way ascertained or ascertainable see In re Gossling. ([ 1902] 1 Ch.945; on appeal [ 1903] 1 Ch. 448.) As the learned trial judge states in his judgment in analysing the will "In this case the executor is directed to maintain the family of the testator, and the maintenance of the family includes the maintenance of the executor. The direction to the executor is that he should maintain himself, the testators wife and the son or the daughter of the testator out of the properties and effects of the testator. The executor it seems may, for the purpose of maintenance of the testators family, spend the corpus, for the maintenance of the family was to be out of the property and effects, and not out of the income only of the property. If the maintenance of the family did not exhaust the whole income, a discretionary power was given to the executor by cl. 14 of the will to spend the surplus income in giving encouragement to education and works in science and arts as well as in erecting troughs for cows and cattle to drink water from." There is, therefore, no definite ascertained interest "to arise from the fund." Their Lordships agree with the trial judge that the case does not fall within the exception to s. 107 of the Indian Succession Act, and, as has been already stated, their Lordships agree that the bequest of the residue to the son is contingent on his attaining the age of majority. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, and the decree of the trial Court restored. The order as to costs made by the High Court in appeal will stand. The respondents will pay the costs of this appeal.