Case: Ramachandra Shenoy And Another Vs. Mrs. Hilda Brite And Others

where successive interests are created by the use of the words after the first takers death. In such a case even if the second taker were the issue of the first the first takers interest is for life since by the use of the words after his or her lifetime successive interests are intended to be created. In our opinion, the case on hand would fall within illustration (c) and the bequest to Severina is only of life interest, this being made clear by the use of the words after her lifetime. 13. It was next said that Cl. 4 of the will furnished cogent evidence of what might be called the vocabulary of the textatrix which she employed when she intended to create a life interest. This intention, it was urged, was manifested in that clause by two provisions, first by providing that the legatee-the second daughter should enjoy up to her death only and then as if to emphasise the limited nature of the interest conferred, by expressly prohibiting all alienations by way of gift, sale, mortgage etc. We however see no distinction between the phrase enjoy up to her death and a provision which directs an enjoyment by a legatee by a clause which proceeds to make a gift over of the absolute interest after the death of the first legatee. Nor do we consider that the emphasis contained in the prohibition against alienation in Cl. 4 as of any decisive importance in understanding the phraseology employed by the testatrix in this will. For when one turns to Cl. 5, we find there is what without doubt is a life interest in favour of her granddaughter-Julia-created by the use of the words enjoy the property up to her death without the addition of the prohibition against alienation which is found in Cl. 4. It is therefore manifest that expressions after the lifetime and after the death were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one-a life interest-and we have these words after her lifetime in Cl. 3(c). 14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct. 15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.