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TAN JIAK KIM AND OTHERS v. TAN JIAK WHYE AND OTHERS
STRAITS SETTLEMENTS LAW REPORTS
COX

4 AUGUST 1896

Counsel:
For the plaintiffS - Brydges
For the 1st and 2nd defendants - Delay
For the 3rd defendant - The Attorney-General and R. Allen
For the 45h, 5th, and 6th Defendants - Napier and Fort
For the 7th defendant - Sisson
For the 8th defendant - Khory
For the 9th Defendant - Matthews

JUDGMENT
COX, C.J.
This is an originating summons taken out by the Plaintiffs, Tan Jiak Kim and Tan Jiak Chuan, as trustees of
the will of Tan Kim Seng, for the determination of several questions arising upon the administration of the
trusts of the will. By his will, dated 30th April, 1862, the testator, who died in 1864, appointed two of his
sons executors and trustees, and, after several legacies, he gave them the residue of his estate upon trust
for investment, and he directed that the net income should be divided into two shares-one moiety, which
he called the "Descendants' Fund," to be divided once in every three years equally between his four sons;
the other moiety, called the "Sinchew Fund," was charged with the payment of various legacies, and with
the expense of performing the Sinchew ceremonies; and the surplus or accumulation of the income was to
be divided equally between his sons once in every twelve years. The will, then, provides as follows: "And I
further direct that each of my said sons shall have power by will to appoint the person or persons being
one or more of my male descendants of the 'Seh Tah' in the male line to whom such share in the income
of the Descendants' Fund and Sinchew Fund shall be paid after his death; and that failing such
appointment, in any case, the share or shares of such son or sons shall be divided equally amongst his
male descendants of the 'Seh Tan' in the male line, and, failing such male descendants, shall be divided
equally amongst his next of kin of the 'Seh Tan' in the male line, and that this provision shall apply to the
case of the grandsons or remoter descendants of my said sons in the male line, & c." The testator left four
sons, one of whom, Tan Beng Gwee, died intestate in 1875, leaving two daughters and seven sons. Four
of the sons of Tan Beng Gwee have since died, and the questions I have to decide on this summons have
reference to their shares in the testator's estate. The first question is whether the power of appointment
given in the provision quoted above can be exercised by the testator's grandsons. Two of the sons of Beng
Gwee have exercised it; Tan Jiak Luan who died in 1887, having given his share to his nephew Tan Soo
Tek, and to some to his surviving brothers; and Tan Jiak Siong, having appointed his share to his brother
Tan Jiak Choo and his mother Ong Hai Neo. It is contended on behalf of two of the Defendants, who claim
to have a contrary interest, that the appointments are invalid, and that the shares of Tan Jiak Luan and Tan
Jiak Siong, therefore, pass to the next of kin. In support of that contention, it is urged that, when the
testator in the provision quoted above says this provisions shall also apply to the case of "grandsons or
remoter descendants of my said sons," he means not his own "grandsons" but his sons' grandsons. Such
a construction would lead to the following result; the testator must be taken to have intended to giving the
power of appointment to his great grandsons, but not his grandsons, in other words, to exclude one
generation of his descendants. Nothing short of express or clear words would justify such a construction.
Here not only is there no expression of such an intention, but the words used may be read grammatically
either as "my grandsons" or as "the grandsons of my sons.' I adopt the former construction which is in
accord with the manifest intention of the testator to benefit his sons and their make descendants without
excluding any particular generation. I, therefore, hold on the first question raised in the summons that the
power of appointment was exercisable by Tan Jiak Luan and by Tan Jiak Siong. But the appointment
made by the latter in favour of his mother, Ong Hai Neo, is void, as, under the will, only male descendants
of the testator of the "Seh" Tan can be appointed, and, accordingly, the moiety of the share of Tan Jiak
Siong has devolved as in default of appointment.
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The next question is thus stated in the summons: "Whether, upon the death of each of the deceased sons
of Tan Beng Gwee, his personal representative became entitled upon the next triennial or duodecennial
distribution of income to an apportioned proportionate share of the income accumulated since the last
distribution, etc." I understand, after hearing the argument, that the point raised really comes to this: Had
each son, when he died, acquired a vested right in the Fund as it then stood, or is the right for each son to
take part in the distribution of profits contingent and the conditional upon his being alive when the time
fixed arrives? Mr. Napier, who contended that each son acquired a vested interest which, on his death,
passed to his personal representative, argued that, under Thellusson's Act, (39 & 40 Geo. 3 c. 98) the
clause as to the accumulation of profits and income is void; and it was also contended that there would be
an intestacy as to the profits, and, inasmuch as under the will the corpus goes to those entitled to the
income, all the trusts would fail and the estate must at once past to the next of kin. This large question is
not before me. If any of the Defendants wish to challenge the validity of the trusts, they must bring the
matter regularly before the Court at their risk and expense, but I can now only deal with the issues raised
on the summons. With respect of the clause as to delaying the distribution of profits, I am of opinion that
Thellusson's Act, which prevents the accumulation of income for more than 21 years, etc., etc., applies to
this Colony: but I hold that the direction of the testator that the income of the "Descendant's Fund" should
be distributed every three years, and that of the "Sinchew Fund" every twelve years, is not an
accumulation of profits for more than 21 years prohibited by the Act and, therefore, not void as contended.
I also hold that the beneficiaries do not become entitled to a share of the profits as they accrue from time
to time, but their right to take part in the distribution of the surplus (when there is a surplus after paying the
charges on the fund), depends upon their being alive when the period for distribution arrives. Accordingly,
when one of the sons of Tan Beng Gwee died before the period had arrived, his personal representative
did not become entitled "upon the next distribution to an apportioned proportionate share." as mentioned in
the question. But, even if each son had a vested right to a part of the profits accrued at the time of his
death, that right must pass as provided in the will, and not necessarily to the personal representative apart
from or against the provisions of the will. The next question in the summons is practically answered by
what I have said above.
Upon the fourth question, I hold that, upon the death of each son, the whole of his interest, i.e., not only
his original share, but whatever might have devolved upon him on the death of any of his brothers, passed
in conformity with the will to his appointee or in default of appointment to his male descendant, or, in
default, to his next of kin of the "Seh Tan" in the male line.
The next question is whether, upon the death of Tan Jiak Eng, one of the testator's grandsons who died
intestate and without issue, his sisters, Tek Kim Neo and Tek Koon Noe, and his niece, Liang Neo,
became entitled to a share of his interest as well as his brothers and nephew. The provision in the will
above quoted is that, when one of the sons or grandsons dies without male descendants and without
having exercised the power of appointment, then his share shall be divided equally among his next of kin
of the "Seh Tan in the male line." It is contended that the sisters and niece of Jiak Eng are "next of kin in
the male line." And Sayers v. Bradley 5 H.L.C. 873. was relied upon as showing that the expression "next
of kin of the male line" includes female. It is no doubt so, when a contrary intention does not appear clearly
in the will. In this will the testator evidently contemplates that his property would pass to his sons and their
male descendants. He gives it to his four sons and after them to their "male descendants in the male line."
Each son or other male descendants has power to appoint by will the person who will succeed to his
share; but the person appointed must himself be a "male descendant in the male line". He expressly
declares that "the shares in the income and produce of the trust property-to be paid to my sons and their
male descendants in the male line, shall be and constitute a personal and inalienable provision for my said
sons and their male descendants in the male line respectively." To give full effect to his wishes in that
respect, he lays down the following provision: "In case the shares or any part thereof shall by operation of
the law or by any other means whatsoever become payable to or receivable by any person whosoever
other than my said sons or other descendants in the male line, respectively, such shares shall immediately
thereupon case and determine... and such person shall cease to have any right, etc." In the codicil to his
will dated 17th December, 1863, he adds to the above a direction that the forfeited shares are to be
divided amongst the other persons entitled to the remaining shares. There is also a provision that "in case
any of my sons or their male descendants in the male line, respectively, shall forsake or renounce the
religion and practices of the Chinese and adopt any other religion, such son or male descendants shall
cease to have any right. etc.," and his share becomes divisible "amongst the other persons entitled to the
remaining shares." Nowhere in the will are female descendants referred to as possible successors to the
property, but special legacies are given to the daughters and granddaughters of the testator. I think the
only possible conclusion is that the testator intended that his property should pass to the male
descendants, females being excluded; and, therefore, I must construe the words on which this question
turns, i.e., "next of kin of the Seh Tan in the male line," as meaning male next of kin. Such being the
decision on the 5th question, it becomes unnecessary to consider the 6th and last question raised on the
summons.
The 4th, 5th and 6th Defendants appealed, contending that the accumulation directed by the will was void
under the Thelluson Act beyond 21 years after the death of the testator and that the gift 'next of kmin of
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the Seh Tan in the male line' included females of the Seh Tan who were descendants of the testator
through males.
Napier and Fort for the Appellants (the 4th, 5th and 6th Defendants) The Thellusson Act applies to the
Straits Settlements and the directions in the will with regard to the application of the income of the
residuary estate are invalid beyond 21 years after the testator's death as being accumulations under that
Act. They quoted in addition to the cases previously cited, the following cases, viz.:-Shaw v. Rhodes s. c.
Evans v. Hellier 1 My. & C.135;5 Cl. & F. 114. Webb v., Webb 2 Beav. 493 Re Mason v. Mason 1891 3 Ch.
467, Weatherall v. Thornburgh 8 Ch. D. 261. They further argued that 'next of kin of the Seh Tan in the
male line' included females of the Seh Tan who were descendants of the testator through males.
Brydges for the Plaintiffs. The judgment of the Chief Justice is right, and quoted, in addition to the case
cited in the Court below, the following cases, viz.:-Thelluson v. Reddlesham 7 H.L.C. 429, Re Royle: Royle
v. Hayes 43 Ch. D. 18, Saunders v. vautier Cr. & Ph. 240, Wharton v. Masterman 1895 A.C. 186.
Delay for the 1st and 2nd Defendants. The Thellusson Act is not in force in the Straits Settlements and
quoted Yeap Cheah Noe, v. Ong Cheng Neo L.R. 6 P.C. 381 Jex v. McKinney 14 App. Cas. 77. A.G. v.
Steward 2 Mer. 143. Even if the Thelluson Act is in force, the judgment of the Chief Justice was correct.
Allen for the 3rd Defendant. The matter cannot be decided an originating summons and quoted Re Davies:
Davies v. Davies 38 Ch. D. 210. If it could, the judgment of the Chief Justice should be affirmed. He also
argued that portions within the meaning of the Thellusson Act were provided by the will, and quoted Jones
v. Maggs 9 Hare 605.
The Attorney-General for the 3rd Defendant argued on the same side.
Fort for the 4th, 5th and 6th Defendants replied.
LAW, J.
In this case the Plaintiffs, the present trustees of the will of Tan Kim Seng deceased, took out an
originating summons to settle certain questions arising upon the will. The testator who died March 14th,
1864, appointed two of his sons executors and trustees of his will, and gave to them the residue of his real
and persona estate, upon trust in the first place to defray certain costs and expenses referred to in the will,
and upon further trust once in every three years to divide the net income into two equal shares or moieties,
of which one moiety which the testator called the "Descendants' Fund," was to be divided equally between
his four sons. As to the other moiety called the "Sinchew Fund," this moiety was to be used in the first
place to pay certain legacies and to defray sinchew expenses, and the surplus or accumulation of the fund
was then to be equally divided between his sons once in every twelve years. The will contained a further
provision in the following words, " I declare that each of my said sons shall "have power by will to appoint
the person or persons, being one "or more of my male descendants of the Seh Tan in the male line "to
whom such son's share or shares in the income and produce of the said trust property and securities
including both the Descendants' Fund and Sinchew Fund' shall be paid after his death, "and that failing
such appointment in any case the share or "shares of such son or sons shall be divided equally amongst
his "male descendants of the Seh Tan in the male line, and failing "such male descendants shall be
divided equally amongst his "next of kin of the Seh Tan in the male line, and that this provision shall also
apply to the case of grandsons or remoter descendants of my said sons in the male line, and that in all
cases "such descendants shall take the share of their ancestor per "stirpes and not per capita."
The testator's four sons all survived him. One of them Tan Beng Gwee died intestate in 1875. Tan Beng
Gwee left seven sons and two daughters; and of his sons, one Tan Jiak Lum died intestate in 1878, and all
the other sons and daughters of Tan Beng Gwee were alive after the year 1885, and this I consider a very
important point, as will appear hereafter. The questions to be decided on the summons have reference to
the share from the testator's estate which was formerly payable to Tan Beng Gwee whom I have referred
to above.
I should wish here to mention, as I think it is not altogether unimportant in construing the will, that though
in the printed copies supplied to us, the will is shown as broken up into paragraphs, it is not so broken up
into paragraphs in the original. It was contended, if I understood rightly, that on this originating summons
we should not take into consideration the provisions of the Thellussion Act, but it seems to me that we
must do so, in order to deal with the questions which have been raised. As to the question whether the
Thellusson Act is in force here or not, it seems to me on the authority of Yeap Cheah Neo, v. Ong Cheng
Neo L.R. 6 P.C. 381 and R. v. Williams 3 Kyshe 16, that the question really depends upon whether the Act
is applicable to the circumstances of the Colony. I am unable to see any reason why the Act should be
held not to be applicable to the circumstances of the Colony, and therefore I must hold that it is in force
here.
It was contended that as under the will in this case it was directed, that the income, in respect of which it is
alleged there was to be an accumulation, was to be distributed as to part very three years, and as to the
remainder every twelve years, there was not to be any accumulation for a term prohibited by the
Thellusson Act: it seems to me however on the authority of Shaw v. Rhodes 1 My. & C. 135. s. c. in, a
case which I understand was not cited in the Court below, that successive accumulations of this kind must

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be held to be forbidden by the Act, so far as accumulating would go on at a time beyond that allowed
under the Act, even though there may be directions to distribute the accumulations at the termination of
each of several periods, and the termination of some of such period arrives within 21 years from the death
of the testator. See also Webb v. Webb 2 Beav. 493. Dom. Proc. sub. nom. Then it was also argued that,
as there was no express direction to invest the income received pending its being paid over, the will could
not be held to contain a direction for accumulation. I do not think from what is said in the will about
investment, that the testator contemplated his monies lying idle, but in any case assuming that it does not
amount to an accumulation, if income received is simply added to income previously, received, without any
of the money being invested at interest, the answer to the argument, it seems to me, is that it could not be
the duty of a trustee to receive monies and leave them lying idle bearing no interest, for periods of twelve,
or even three years; and if an authority for this proposition is required. I may refer to what is said by Lord
Davey in Wharton v. Masterman 1895 A.C. 186 at 197. It seems to me, then, that the will does certainly in
effect direct accumulations which are contrary to the provisions of the Thellussion Act, and that such
directions for accumulation are void. It was further argued that if the will contained directions of
accumulate, all we had to do was to strike out, as it was called, the directions to accumulate, and as I
understand direct the income to be paid over to the persons who, had the accumulations not been void,
would under the will have taken any accumulations that might be payable at the time that, according to the
direction, the income would be held to be payable. In support of this proposition, the case of Eyre v.
Marsden 2 Keen 564 was relied on, but it does not seem to me the case of Eyre v. Marsden 2 Keen 564,
supports the view which was contended for. In the present case the persons who are to take the capital,
the gift of which is dealt with in another part of the will, might or might not be the same persons as the
persons who would according to the will, have the right to take the accumulations referred to above; and,
leaving the capital out of account, the gift to these latter persons seems to me to be simply a gift of the
accumulations,and if you strike out the directions to accumulate, or what amounts to directions to
accumulate, it seems to me you strike out the gift.
It was also said, that in all cases when gifts have been held to be void as being gifts of accumulations
against the provisions of the Thellusson Act, there has been a direction to accumulate for a definite period,
such as till the death of A, then a gift to B, and then a gap between 21 years from the death of the testator
and the death of A, and it was argued there was no such gap in this case. I am however unable to concur
in this view, because it seems to me, there is here in every case a gap between 21 years from the death of
the testator and the date at which according to the will each distribution after the 21 years should be
made.
I do not think it was seriously contended that the accumulations were directed for the purpose of providing
portions for children, and I see no reason for adopting that view of the matter. Some argument took place
on the question of acceleration of gifts, but I do not think it is necessary to discuss that point, because as I
have said, it seems to me, the gift is a gift of accumulations, and when you strike out the direction to
accumulate, you strike out the gift.
Under the circumstances, it seems to me that after the expiration of 21 years from the testator's death, the
income constituting the "Descendants Fund" as it is called, and also the surplus of the "Sinchew Fund,"
directed to be paid in the first instance to the sons of the testator become payable to the next of kin of the
testator, as undisposed of by the will, but it perhaps necessary to say something further, in regard to the
questions which have been asked in the originating summons.
As regards then the 1st question on the originating summons, as the testator died on the 14th March,
1864, I think the powers of appointment referred to were not exerciseable by wills of 1887 and 1895, and it
is not necessary to say any more as to how Tan Jiak Siong's share in the income devolved, because that
is settled by what I have said before.
As to the 2nd question asked in the summons, little was said in the argument before us about the question
of apportionment, but I concur with His Honour the Chief Justice in thinking that he beneficiaries under the
will did not become entitled to a share of the profits as they accrued from time to time and that their right to
take part in the distribution of the surplus of the "Sinchew Fund," and in the distribution of the
"Descendants Fund," depended upon their being alive when the period for distribution arrived.
As regards the 3rd question on the summons, as has been mentioned, the only son of Tan Beng Gwee
who died before 1885 is Tan Jiak Lum, and it follows from what I have said, that the person or class of
persons entitled after his death and until 14th March, 1885 was to be ascertained, not at the date of his
death but at the respective times of distribution of the "Descendants Fund" and of the surplus or
accumulations of the "Sinchew Fund."
As only one son of Tan Beng Gwee died prior to 1885, I do not think it necessary in regard to the fourth
question, to add any thing to what I have already said. Haig regard to the view I take of the case, it is not
necessary to say any thing further in respect of the 5th and 6th questions on the summons.
In conclusion, I only desire to say, that I do not think all the questions which have been raised have been
brought before us in the way they ought to have been brought, and I also think we should have had fuller

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information as to the facts. It seems to me that it is possible there was no real necessity to consider some
of the questions we have been asked to decide.
LEACH, J.
This is an originating summons, whereby the Court is asked to answer certain questions as to the
construction of the will of a China man, and both here and in the Court below it was argued that the Court
could not go beyond the questions actually asked; on the other hand, it was urged that underlying and
materially affecting the questions asked, came the question whether the so-called Thellusson Act applied
to this Colony, and if it did apply, the still larger question whether certain of the trusts created an
accumulation contrary to that Act. The Chief Justice appears to have though that the larger question was
not before him, but at the same time he expressed an opinion that while on the one hand the Act was in
force, on the other hand the particular trusts did not direct an accumulation contrary to the Act. In my
opinion, we cannot with any advantage determine the questions raised without deciding whether the trusts
are hit by the Thellusson Act. The answer to some of the questions depends entirely upon the view we
hold as to there trusts and in the event of holding that the trusts are void, answers to other question are
unnecessary. It is most inconvenient that questions of such importance should be disposed of on
originating summons, but as no objection on this ground was taken in the Court below and the parties
have been put to considerable expense, I think we ought to deal with the matter as best we can with the
materials before us.
With regard to the applicability of the Thellusson Act, I entertain no doubt. It is an Act of a general
character and of general policy closely connected with the rule against the creation of perpetuities and of a
wholly different character to the Mortmain Act, which was more or less of a political character, and which
has been held not to apply in Penang (see Yeap Cheah Neo v. Ong Cheng Neo L.R. 6 P.C. 381 and case
be there cited.) In the case cited, the rule against the creation of perpetuities has been held to apply and in
a post note stated to be added by the learned Recorder Sir Peter Benson Maxwell to Reg v. Willans 3
Kyshe 16 taken from the journal of the Indian Archipelago Vol. III pt. I. p. 37. He says 'Why the Thellusson
Act which prohibits the accumulation of income for more than 21 years after death except for paying debts
and positioning children, should be inapplicable to this Colony, is perhaps not very obvious, as it rests on
grounds of general policy, I pressed counsel who argued his point to indicate its inapplicability, but he was
unable to do so. I am of opinion that it is applicable. The next consideration is whether it affects the trusts
in this case.
By his will dated 30th April, 1862, (which is set out in paragraphs i the printed copy supplied to us,
although in the original there is no division in to paragraphs) the testator Tan Kim Seng after appointing
two of his sons Tan Beng Swee and Tan Beng Gam executors and trustees and after making provision for
his daughters and bequeathing various legacies, bequeathed the residue of his real and personal estate to
his said two sons in trust to hold for the term of 64 years with authority to sell and to reinvest in land (there
is no other direction to invest except as this direction is slightly raised by the codicil to this will), and he
declared that all the trust property moneys and securities should form an aggregate fund to be held upon
trust out of the income and produce to defray the costs and expenses of managing and cultivating the
freeholds and leaseholds and of repairing the rebuilding houses and other buildings thereon and of
erecting new houses thereon as they should think proper, and then he continues thus "and upon further
trust once in every three years to divide the net income and produce of the said trust property after
defraying such costs and expenses and other outlay as aforesaid into two equal shares or moieties and to
divide and pay one of such shares or moieties (which hereinafter will be called the 'Descendants Fund')
equally between my said sons Tan Beng Swee, Tan Beng Gwee, Tan Beng Gam and Tan Beng Gwat" the
testator then directs "out of the other share or moiety of the net produce (which hereinafter will be called
the 'Sinchew Fund') the payment of (i) an annual sum of $300 to a brother in China and after his decease
to his male descendants of the Seh 'Tan' in the male line (ii) sums of $20,000, $10,000 and $4,000 to his
grandsons and granddaughters (children of his said four sons) on attaining 21 years of age, (iii) such sums
annually or as often as shall be proper in the performance of certain Sinchew rites and ceremonies." And
then he proceeds "I further direct that any surplus or accumulation of the said Sinchew Fuind, which shall
from time to time exist after providing for the several payments aforesaid shall be equally divided amongst
my said sons.... once in every twelve years." Then follows a declaration that each of his sons shall have
power by will to appoint the persons being one or more of his male descendant of the Seh Tan in the male
line to whom such sons's share or shares in the income or produce of the said trust property including both
the "Descendants" and "Sinchew" Fund shall be paid after his death, and failing appointment he directs
the share of such son to be equally divided among his male descendants of the Seh Tan in he male line
and failing such male descendants then to the son's next of kin of the Seh Tan in the male line. He then
adds that "this provision shall also apply to the case of grandsons or remoter descendants of his said sons
in the male line." Omitting certain intermediate provisions which it is conceded are void, and which the
testator anticipated might be void, the ultimate gift of the whole trust property is to the several persones
entitled to receive the income and produce thereof who shall be living at the expiry of 20 yeas from the
death of the survivor of the testator's children and more remote issue living at his death.

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The intention to be gathered from this will is to tie up the property as land as long as the law permits,and
until the period of distribution, after providing for certain payments out of income, to benefits his four sons
and give them the surplus income share and share alike for life and then to confer on them the power by
will of appointing their successors to their share of income; but in doing this the testator has directed his
trustees to divide the net income into moieties every three yeas and to pay one moiety to his four sons.
Therefore the trustees must necessarily retain the income not required of the expenses mentioned for a
period of 3 years before they pay it to the persons for the time being entitled and so on from time to time,
and similarly with regard to the surplus or accumulation of the other moiety of income, after paying the
annual sum of $300 and making provision for the legacies to grandsons of granddaughters as they arise
and sums of sinchew rites, they are to divide once in 12 years. Therefore as regards the sinchew fund
income they are practically to retain it for 15 years, the 3 years during which the whole income is to be
retained before division and 12 years after. He appears to have intended to provide a class of life tenants
of both funds with a gift of the corpus to the same class at as remote a period as possible.
The testator died on the 14th March, 1864, leaving his four sons surviving him. One son, Tan Beng Gwee,
died in March, 1875, intestate, leaving seven sons and two daughters; and the questions we are asked
relate to this son's share of both funds, the interest (if any) of his children therein and the manner in which
they have dealt or purported to deal with those interests.
We are not informed as to the actual state of the funds nor how they have been applied since the testator's
death, but it is admitted that there are monies to be distributed representing both the "Descendants" and
the "Sinchew" fund, that is to say, net income of the one moiety and surplus income of the other moiety.
The testator's other sons are not represented in this action, and we have therefore only to deal with the
share of income of Tan Beng Gwee and of his sons interest therein.
The Thellusson Act prohibits the accumulation of income for more than four alternative periods, amongst
which is a period of 21 years from the testator's death. That period was reached in 1885. Does the Act
prohibit the method the testator has adopted for paying and distributing the income of his property? Except
for certain expenses, the holding back or retention of income of the whole estate was to commence at the
testator's death and to continue as regards one moiety for 3 years and as regards the other moiety subject
to certain payments to continue for a further period of 12 years. It is apparent therefore that during these
intervals the beneficial enjoyment of the income of both moieties was postponed. Is that an accumulation?
If so, for 21 years it is legal and beyond that period prohibited.
It is true that there is no express direction to accumulate, but as was said by Lord Davey in Wharton v.
Masterman 1895 A.C. 186 at 197 there is an implied direction to accumulate. The authorities show that the
Courts in determining whether an accumulation is directed, must look to the effect of the words used and,
if they in effect direct money to be rolled up, that is an accumulation. The testator has directed here first
the net income to be retained for 3 years and then half paid and the other half retained after certain
payments for 12 years. What is to be done with such income, as the trustees received it and before they
divide it? The general rule is that where there is no direction to pay immediately, and here there is none,
the trustees are bound to invest and that necessarily involves accumulation, even if merely hoarding up
moneys without investment is not equally accumulation. The effect of the directions given by the testator,
as regards both moieties of income, is substantially to direct accumulation. Each moiety is to form a
special fund, a quasi-sinking fund, to meet certain objects, and with regard to the Sinchew fund the
testator uses the word "accumulation" itself, and I cannot escape from the conviction that the testator
intended periodical accumulation until the period of distribution arrived, that is to say that the effect of the
direction given is a process of accumulation for more than 21 years from his death, and that direction is
within the principle of Shaw v. Rhodes 1 My. & C. 135. s.c. in Dom. (which unfortunately was not cited in
the Court below.) I am therefore of opinion that the accumulations directed are void after 21 years from the
testator's death.
It was however further argued that assuming these directions in effect created an accumulation prohibited
by the Act, there was a certain class of cases that stepped in and annulled the operation of the Act on the
principle, as I understood the argument, that, inasmuch as the income was to go to a class of persons who
would ultimately be the class who would take the corpus, they could at any time step in and stop the
prohibited accumulations, which were only for their benefit. I confess I have come across no authority to
that effect and it was with considerable difficulty that I could graps the argument which was put forward in
this connection. The chief cases are Saunders v. Vautier 4 Beav. 115; Cr. & P. 240 Proc. sub nom. Evans
v. Hellier 5 Cl. & F. 114. Josselyn v. Josselyn 9 Sim. 63. and Wharton v. Materman 1895 A.C. 186.
Saunders v. Vautier 4 Beav. 115, Cr. & P. 240, shows that where a legacy is directed to accumulate for a
certain period or the payment thereof is postponed for a certain period and the legatee has an absolute
indefeasible interest in the legacy, he is not bound to wait till the expiry of the period, but can stop the
accumulation or hasten the period of payment, the moment he can give a valid discharge for the legacy
e.g. when he attains 21 years of age; and Josselyn v. Josselyn 9 Sim. 93 is to the same effect, viz. where
an infant is made residuary legatee and the surplus income of the legacy after providing for his
maintenance is directed to be accumulated and paid to him with the corpus on attaining 24 years of age,
he can on attaining 21 years of age obtain payment of the surplus accumulations and of the corpus: and
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so from Wharton v. Masterman 1895 A.C. 186 it is clear that where there is an absolute vested gift made
payable at a future time with a direction to accumulate in the meantime and pay it with the principal, the
Court will not enforce the trust to accumulate in which no one has an interest except the legatee.
Is there any trace of facts in this case which would bring them within the principles state above? Tan Beng
Gwee had a fourth life share both in the "Descendants" and surplus "Sinchew" fund with power to appoint
by will in a certain line. He did not appoint, dying intestate, and thereupon his share of income would go to
his male descendants in the Seh Tan in the male line until the period of 21 yeas from the death of the
testator; and who are those who are eventually to be benefited by the corpus? A class of persons who
cannot be ascertained for many years to come. How can it for a moment be said that the authorities help
the Respondents one whit or title in the case? It may be that some of Tan Beng Gwee's sons or their issue
will form some of the class who eventually take a place in the corpus, but how can it be said that the
income is to go the same way as the corpus, or that the son Tan Beng Gwee or his sons had an absolute
vested interest in the corpus or could give a valid discharge for accumulation and corpus? The cases cited
by the Appellants seem to support their argument. They are cases like the present in which the class
cannot be determined until the happening of the events upon which the fund was made payable: or the
shares of the legatees though vested were liable to be defeated by some event before the time for
payment, or the fund and accumulations were made a security for the payment of certain legacies on the
happening of a given event and the persons entitled were only entitled to an undetermined and uncertain
surplus, if any, which might be left of the fund after payment of the legacies.
As in Talbot v. Jevers L.R. 20 Eq. 255, so here there is no disposition of the intermediate net or surplus
income after the expiration of 21 yeas from the testator's death, there is no residuary gift which would
carry the income and there is therefore a statuary gap and the income goes to the testator's next of kin:
Wilson v. Wilson 1 Sim. N.S. 288. Green v. Gascoyne 4 D.J. & S. 565; 34 L.J. Ch. 268, Eyre v. Marsden 2
Keen. 564, Weatherall v. Thornburgh 8 Ch. D. 261.
The Attorney-General however has pressed upon us the principle laid down in Eyre v. Marsden 2 Keen
564 and approved of in Green v. Gascoyne 4 D.J. & S. 565; 34 L.J. Ch. 268 and Weatherall v. Thornburgh
8 Ch. D. 261, that "the Statute... was not intended to operate and does not operate to alter any disposition
made by the testator except the direction to accumulate, strike that out and everything else is left as
before, and the way the Attorney-General would have us apply that principle is this. He says strike out the
words "once in three years" in the direction as to the division of the whole net income, and strike out the
words "once in every twelve years" in the direction as to the surplus Sinchew Fund, and then you have a
perfectly good direction. But the principle does not say you may do that, i.e. strike out certain words in a
direction, but strike out the direction, and the direction which is implied in the case is the whole effect of
the clauses in which these words occur. Moreover, in the cases cited, the direction to accumulate was an
express direction. If you strike out what amounts to a direction to accumulate in the present case, so far as
it infringes the Thellusson Act, you would have no gift of the net income (Descendants Fund) or of the
surplus Sinchew Fund.
It was also suggested rather than argued that assuming the directions did amount to directions to
accumulate, there was no direction to accumulate beyond the lives of the testator's four sons. There is no
such express direction; on the other hand there is no real indication to be found in the will which leads one
to suppose that the triennial and duodecennial division was not to continue. One son we know is dead and
died before the expiry of 21 years from the testator's death; as to the other sons we know nothing. But
assuming they are alive, are we to assume without any language or indication in that behalf that the
testator intended this triennial and duodecennial division to cease as to the share of the deceased son and
to continue as to the shares of the three living sons?
It appears to me that there is an indication in the will which contemplates the continuation of the division,
viz.: in the ultimate gift of the corpus we find a further direction to apply the income and produce of the
trust property until distribution in the manner hereinbefore directed, that is, in dividing it subject to the
charges on it as to the whole of the net income once in every three years and as to the surplus Sinchew
Fund once in every twelve years.
In this case, we are only concerned with the tetator's son Tan Beng Gwee, who died in 1875, and his sons
and daughters. Of these (1) Tan Jiak Lum a son died in 1878 intestate, and he is the only child who died
within 21 years from the testator's death, (2) Tan Jiak Luan another son died in May 1887 having by will
purported to exercise the power of appointment supposed to be given to him by the testator's will, (3) Tan
Jiak Eng another son died intestate, in 1890, (4) Tan Jiak Siong another son died in 1895 having by will
also purported to exercise the aforesaid power of appointment, (5) and Tan Teck Kim Neo a daughter who
died intestate in 1894. Tan Jiam Lum left a son Tan Soo Teck who is still living and one of the Defendants
in the suit.
The 1st question which we are asked to answer is whether Tan Jiak Luan and Tan Jiak Siong could
exercise the above-mentioned power of appointment. In my opinion the question does not require any
answer, inasmuch as there was no fund which could be affected by the exercise of the power. The trust
ceased to be valid in 1885 and the power if exerciseable by grandsons at all was only over income, and
that under our ruling should have gone to the next of kin.
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The 2nd question is whether upon the death of each of the sons of Tan Beng Gwee (I take that to mean
each of the sons who have already died), his personal representative became entitled upon the next
triennial or duodecennial distribution of income to a proportionate part of income which accrued since the
last distribution.
In the view we have taken, this question is only pertinent (if at all) in regard to the son, Tan Jiam Lum, who
died in 1878, that is to say within 21 years from the testators death. According to the triennial periods of
distribution stated in the Appeal papers, the last period of distribution before Tan Jiak Lum's death, was in
1876 and the next period of distribution would be the year after his death, 1879.
According to the duodecennial period of distribution stated (although I am not at all sure that they are
correctly given, because it appears to me that at any rate the first period of distribution should be 15 years
after the testator's death) the last distribution of the surplus Sinchew Fund before Tan Jiam Lum's death
was in 1876 and the next period after his death was in 1888.
The Chief Justice held that the income accruing between both periods was not apportionable, in other
words that the legal personal representatives of Tan Jiak Lum did not take the income accruing between
the last period of distribution and death. Whether the question really calls for an answer, even as regards
Tan Jiak Lum, we are not in a position to say. We know nothing about the funds, beyond the admission
that there are two funds to be death with. But assuming that the question really arises, I see no reason to
differ form the Chief Justice on this point, inasmuch as apportionment was only made universal by the
Imperial Statute 4 & 5 Will IV c. 22, and neither that Act or more recent Acts apply to this Colony nor have
we any similar Act or Ordinance in force here relating to apportionment of income and I also concur with
the Chief Justice in his answer to the 3r question.
With regard to the 4th question I am of opinion that as Tan Jiak Lum had a son who survived hi, his share
of income passed to that son, as his male descendant in the Seh Tan in the male line until the trust
became void and that the question does not require further answer.
I do not think it is necessary to answer any of the remaining questions, as the answer to them depended
on the validity of the trusts for accumulation after 21 years from the testator's death.
I think it is to be deprecated that the trustees should have brought forward these questions in the manner
and on the material they have done, but having regard to the conduct of the parties and the course
adopted by them, I think on the whole that the costs of all parties should come out of the estate.

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