(1880) 5 AC 714 HL. 14. Postponement of Vesting.

In Sisir v. Ajit AIR 1938 Cal 466:42, it was held that upon the death of the testator, the estate vested in the son, and the vesting was not postponed by the words "after the death of my wife." The testator gave a life estate to his wife and provided that after her death, his son would acquire the absolute interest in the estate. He also indicated how the estate would be dealt with in case his son predeceased the testator or his widow.

The court held that the words "after the death of my wife" did not postpone the vesting of the estate but merely indicated that the remainder interest during the widow's lifetime would ripen into an absolute interest upon her death. In his judgment, Nasim observed that a will takes effect after the death of the testator. It follows that any devise or bequest in favor of a person in esse (i.e., already existing) confers an immediate vested interest unless there is an intention to suspend or postpone its operation.

Similarly, in P. Somasundaram v. K. Rajammal AIR 1976 Mad 295, the testator, by his will, clearly expressed that his wife P, daughter-in-law C, and granddaughter V through C, would maintain themselves out of the income of the bequeathed property during the lifetimes of P and C, who had no right of alienation.

After their deaths, V would inherit the property absolutely. It was held that the vested interest in the properties passed to V upon the testator's death, although possession was postponed until the deaths of P and C, who had a right to maintenance. This maintenance right did not suspend the vesting of the properties in V.

In Harris v. Brown ILR 28 Cal 621 (PC), the testator died sometime in 1857, leaving a will dated January 1857. A particular clause of the will provided that his residuary estate "shall descend in equal shares to the eldest son to be born to each of the daughters of my late brother who are now alive." The sons of these daughters would remain under the control of the executor until they attained majority at the age of 21. Upon reaching majority, the executor would transfer the share to the eldest son of any of the daughters, to his satisfaction.

A subsequent clause in the will declared that "until the majority of whoever may be the eldest at the time amongst the sons of my brother's daughters, the estate shall remain in the hands of the executor absolutely and for all purposes." At the time of the testator's death, two daughters of his brother were alive, one married and one unmarried. A son was born to C in 1858, and upon reaching 21 years, half of the estate was transferred to him. F married W in 1878, and their only issue, a son born in 1883, lived only a few hours.

The Privy Council held that a moiety of the estate vested in the sons of C at their birth. The vesting was not suspended by the direction that the share would be transferred to each son upon attaining 21 years, as this merely indicated the time for possession and enjoyment of the already vested share.

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