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PETITIONER: NAVNEET LAL ALIAS RANGI

       Vs.

RESPONDENT: GOKUL AND OTHERS

DATE OF JUDGMENT09/12/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. MATHEW, KUTTYIL KURIEN UNTWALIA, N.L.

CITATION:  1976 AIR  794            1976 SCR  (2) 924  1976 SCC  (1) 630  CITATOR INFO :  RF         1979 SC1345  (5)

ACT:      Testamentary    Will-Construction-Principles    of-Term "Malik" used  in a  Will-Meaning  of  for  the  purposes  of construction of the Will, whether it denotes vesting a "life interest" or an "absolute interest".

HEADNOTE:      One ’BC’,  governed by  the Mitakshra  School of  Hindu Law, being  issueless and  apprehending  the  claim  to  his property after his death as reversioners by his only brother ’RR’ and  his nephew  ’K’ who were inimical to him since the partition of  their ancestral property in 1899, and possible harassment of  his wife  and ’G’, the respondent, executed a Will  on  September  21,  1916,  in  the  Urdu  script.  The respondent ’G’  being  the  son  of  the  testator’s  sister married to  testator’s wife’s brother was doubly related. As per the  Will, ’G’  was to  perform the  obsequies and other annual death  ceremonies etc.,  being his  ’waris’  and  the "Malik Kamil’-absolute  owner" having  all  the  proprietary powers and  the power  of making  transfers of  all  sorts", while his  wife was to be in possession and enjoyment of the property during her life time. From the date of death of the testator in  1918 for about 18 years the widow and ’G’ lived in cordiality but got estranged later due to estrangement of feelings resulting  in several civil and criminal litigation between them.  The widow  died in 1948 executing a gift deed and a Will in respect of certain properties in favour of the appellant ’NL’.      ’G’ filed  a civil  suit claiming  his rights under the Will dated  21 September,  1916, and the appellant defendant contested it  on pleas  that the  widow of  ’BC’  having  an absolute right over the property under the said Will validly made   the gift  deed and the Will of 1948 in his favour and that the  respondent-plaintiff had  no locus  standi to file the suit.  The suit  was decreed. On appeal to the Allahabad High Court, as there was a difference of opinion between the Judges of  the Division  Bench on  the nature of the widow’s estate,-one  opining  as  the  Will  conferring  a  "limited estate" and  the other  opining as  conferring an  "absolute

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estate" the  appeal was set down to a third Judge who agreed with the  view that  the  Will  conferred  only  a  "limited estate" upon the widow and dismissed the appeal.      Confirming  the   decree  of   the  courts   below  and dismissing the appeal by certificate, the Court, ^      HELD : (1) The following are the established principles for construing the language of the Will.      (a) In  construing a  document whether in English or in vernacular  the   fundamental  rule   is  to  ascertain  the intention from the words used; the surrounding circumstances being considered  to find  out the  intended meaning of such words employed therein. [927F-G]      (b) In construing the language of the Will the court is entitled to  put itself  into the testator’s armchair and is bound to  bear in  mind also  other matters  than merely the words used  like the surrounding circumstances, the position of the  testator, his  family relationship,  the probability that he  would use words in a particular sense-all as an aid to arriving  at a  right construction  of the  Will, and  to ascertain the  meaning of  its language  when used  by  that particular testator in that document. [927G-H, 928A]      (c) The  true intention  of  the  testator  has  to  be gathered not by attaching importance to isolated expressions but by  reading the  Will as a whole with all its provisions and ignoring  none of  them as  redundant or  contradictory. [928B]      (d)  The   court  must   accept,  if   possible,   such construction as  would give  to every expression some effect rather than that which would render any of 925 the expression  inoperative. The  court  will  look  at  the circumstances under  which the testator makes his Will, such as the  state of  his property,  of his family and the like. Where apparently  conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction  should be accepted instead of a construction which would  have the  effect  of  cutting  down  the  clear meaning of  the words  used by  the testator. Further, where one of  the  two  reasonable  constructions  would  lead  to intestacy,  that   should  be   discarded  in  favour  of  a construction which does not create and such hiatus. [928C-E]      (e)  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. [928E-G]      Ram Gopal  v. Nand  Lal and  others [1950] SCR 766/772; Venkata Narasimha v. Parthasarathy, 42 Indian Appeals 51/72; Gnanambal Ammal  v. T.  Raju Ayyar  and others,  [1950]  SCR 949/955; Raj  Bajrang Bahadur  Singh v.  Thakurain  Bakhtraj Kuer, [1953] SCR 232/240; Pearey Lal v. Rameshwar Das [1963] Supp. SCR  834/839/842 and  Ramachandra Shenoy  and Anr.  v. Mrs. Hilda Brite and others. [1964] 2 SCR 722/735, applied.      (ii) The  term "malik"  when used  in a  Will or  other document as  descriptive of  the position which a devisee or donee is  intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of  alienation,  unless  there  is  something  in  the

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context or in the surrounding circumstances to indicate that such  full  proprietary  rights  were  not  intended  to  be conferred, but  the meaning  of every word in an Indian Will must always  depend upon  the setting in which it is placed, the subject  to which  it is related and the locality of the testator from  which  it  may  receive  its  true  shade  of meaning. The  intention of  the testator  will  have  to  be gathered from  all the relevant and material contents in the entire Will  made in  situation in  which the  testator  was placed in  life in  the  background  of  his  property,  his inclinations,  wishes,  desires  and  attitudes  as  can  be clearly and  unambiguously found  either from  the  recitals from   the   instrument   or   from   absolutely   undoubted contemporaneous legally admissible evidence. Hence, even the words "malik  muakkil" can  be qualified  by other words and circumstances appearing in the document. [930 B-C & G-H]      Sasiman  Chowdhurain   and  others   v.  Shib   Narayan Chowdhury and  others, 49  Indian  Appeals  25/35;  Musammat Surajmani and  others v.  Rabi Nath  Ojha  and  another,  35 Indian Appeals  17;  Krishna  Biharilal  v.  Gulabchand  and others, (1971)  Supp. SCR  27 and  Dhyan Singh  and anr.  v. Jugal Kishore and anr., [1952] SCR 478, discussed.      (iii) In the instant case, the testator intended a life estate for  his wife  so long  as she lived as is clear from the reading  of  the  present  Will  as  a  whole.  This  is consistent  with  his  description  of  Gokul  as  "my  heir (waris)" after  his death. It is further consistent with the recital that  "if per  chance, Mrs.  Jarian dies  in my life time, then  Gokul, aforesaid  will  be  the  absolute  owner (malik kamil) of the estate left by me (matruka meri) and he shall have  power of  making all sorts of transfers (aurusko har qism  ke aktiyarat  inteqalat hasil  honge)". In obvious contrast even  though Smt.  Jarian was made the malik of his entire estate  after his  death "having  all the proprietary rights" nothing  is stated  about her  "power of  making all sorts of  transfers" which  power is  expressly mentioned as belonging to  him and  also exclusively conferred upon Gokul after  Smt.   Jarian’s  death.   While  describing  his  own "proprietary powers"  the testator  made  reference  to  his "power of  making transfers  of all  sorts". This  power  of making transfers  which was  prominent in  the mind  of  the testator at the time of execution of the Will is conspicuous by total  omission in relation to Smt. Jarian’s enjoyment of the property.  The testator has made the distinction between mere ownership of property and ownership of the same coupled with a transfer in every way. [931 A-D] 926      Further, from  the recitals  in the Will about his only reversioners viz., his brother and nephew "might trouble and harass my wife Mst. Jarian and my sister’s son Gokul", it is clear that  the testator  never intended  that his  property should pass  to his brother and nephew. This intention would be achieved  by holding  that there  was a  devise of a life estate to  his wife  and an  absolute estate  thereafter  to Gokul indicating a different line of inheritance in the Will on the  other hand,  if any  absolute estate would have been conferred on the widow, then on her death the property would have passed  on by  inheritance to  her husband’s  heirs who were none  else than  the brother  and  the  nephew  of  the testator. There  was no other heir of Mst. Jarian to inherit the property after her death. [931 G-H, 932 A-B]      A plenitude  of absolute  estate in  favour of the wife will make the absolute bequest to Gokul void in law. No such repugnant interpretation  detrimental  to  the  interest  of Gokul can  be made  in the  light of the entire tenor of the

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instrument. The  testator intended  to bequeath in favour of his widow only a life estate and after her death an absolute estate to Gokul. [932B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 914 of 1968.      (From the  judgment and  decree dated  the  9th  April, 1962, of the Allahabad High Court in first Appeal No. 283 of 1950).      Naunit Lal,  K. G.  Bhargava and  Miss Lalita Kohli for the appellant.      G. S.  Pathak, D.  P.  Singh  and  M.  G.  Goswami  for respondents nos. 1(a) to 1(f).      The Judgment of the Court was delivered by      GOSWAMI,  J.   This  appeal  by  certificate  from  the judgment and  decree of  the Allahabad  High Court raises an important question  with regard  to the  construction  of  a will. The  respondent Gokul (whose heirs have been impleaded after his  death) was  the original  plaintiff in a suit for declaration that  he was  the absolute owner under a will of the property  in suit and for possession of certain of them. He also claimed certain movable properties with which we are not concerned in this appeal.      The  property  in  suit  was  originally  in  exclusive ownership and  possession of  Bhola Chaubey,  the  testator. Bhola Chaubey, was governed by the Mitakshra School of Hindu Law. He  belonged to the class of priests and was an old man of 67  years at  the time  when  he  executed  the  will  on September 21,  1916. He had then a legally wedded wife, Smt, Jarian, approaching nearly her forty-fifth year and they had no issue  in wedlock.  The only  person  whom  the  testator appeared  to   have  almost  treated  like  a  son  was  the respondent Gokul,  doubly related to the testator, being his sister’s son  and also  his wife’s  brother’s son. Gokul had been with  him since  childhood and  the  testator  got  him married. Gokul  in return  had been  serving the testator to his satisfaction and was in enjoyment of his full confidence and affection  till the  testator’s death in 1918. Gokul was then aged  about 23  years. It was directed in the will that Smt. Jarian  would get  the obsequies  and  other  religious rites of the testator performed by Gokul.      After the  death of  the testator Smt. Jarian and Gokul continued  to  live  in  cordiality  for  nearly  18  years. Feelings, however, got 927 estranged  some   time  after   that  and   there  was  even litigation, criminal   and  civil, between  Smt. Jarian  and Gokul. It  appears Smt. Jarian, who died in March, 1948, had executed a  gift deed  and a  will  in  respect  of  certain properties in  suit in favour of the appellant, Navneet Lal. All this  led to  the institution of the present suit out of which this appeal has arisen.      The case  of the  appellant was  that Bhola Chaubey had given an  absolute estate  under the  will to his wife, Smt. Jarian, and  she was,  therefore, entitled  to deal with the property as  she liked  and hence  the deed  of gift and the will in  favour  of  the  appellant  were  perfectly  valid. According to  the appellant  the respondent  had no right to file the  suit  basing  upon  the  will  executed  by  Bhola Chaubey.      According to  the respondent the will conferred on Smt. Jarian only  a life  estate during  her life  and after  her

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death an  absolute estate  of the testator’s entire property on the respondent.      The Civil Judge, Mathura, decreed the respondent’s suit except with  reference to  the movable property mentioned in Schedule O  to the  plaint as  well as in respect of certain muafi zamindari  property in  Schedule A  to the plaint. The appellant appealed  to the  High Court at Allahabad and when the matter  came up for disposal by a Division Bench of that court, there was a difference of opinion between the Judges. Srivastava, J.  held that  the testator  had no intention of conferring a  limited life  estate only on his wife and that she acquired  an absolute  estate by  virtue of the will. On the other  hand, B.  Dayal, J.  took a contrary view holding that Bhola  Chaubey intended to give merely a life estate to Smt. Jarian  and to  make Gokul  full owner  of the property after her  death. The  appeal was  then set down for hearing before a third Judge, (Dhawan, J.) who agreed with B. Dayal, J. resulting in dismissal of the appeal.      We  are   concerned  in   this  appeal  only  with  the construction of the will executed in the year 1916.      From the  earlier decisions of this Court the following principles, inter alia, are well established:-           (1)  In construing  a document  whether in English                or in  vernacular the  fundamental rule is to                ascertain the  intention from the words used;                the  surrounding   circumstances  are  to  be                considered; but  that is only for the purpose                of finding  out the  intended meaning  of the                words which have actually been employed. [Ram                Gopal v. Nand Lal and others(1)].           (2)  In construing  the language  of the  will the                court is  entitled to  put  itself  into  the                testator’s  armchair  [Venkata  Narasimha  v.                Parthasarathy(2)] and  is bound  to  bear  in                mind also other matters than merely the words                used.  It   must  consider   the  surrounding                circumstances, the  position of the testator,                his family 928                relationship, the  probability that  he would                use words  in a  particular sense....but  all                this is  solely as  an aid  to arriving  at a                right  construction   of  the  will,  and  to                ascertain the  meaning of  its language  when                used by  that  particular  testator  in  that                document. [Venkata Narasimha’s case supra and                Gnanambal  Ammal   v.  T.   Raju  Ayyar   and                Others(1)].           (3)  The true  intention of the testator has to be                gathered  not   by  attaching  importance  to                isolated expressions  but by reading the will                as  a  whole  with  all  its  provisions  and                ignoring  none   of  them   as  redundant  or                contradictory [Raj  Bajrang Bahadur  Singh v.                Thakurain Bakhtraj Kuer(2)].           (4)  The court  must  accept,  if  possible,  such                construction   as   would   give   to   every                expression some effect rather than that which                would   render    any   of   the   expression                inoperative.  The  court  will  look  at  the                circumstances under  which the testator makes                his will,  such as the state of his property,                of his  family and the like. Where apparently                conflicting dispositions can be reconciled by                giving full  effect to  every word  used in a

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              document,  such   a  construction  should  be                accepted  instead  of  a  construction  which                would have  the effect  of cutting  down  the                clear  meaning  of  the  words  used  by  the                testator.  Further,  where  one  of  the  two                reasonable  constructions   would   lead   to                intestacy, that should be discarded in favour                of a  construction which  does not create any                such  hiatus.   [Paerey  Lal   v.   Rameshwar                Das(3)].           (5)  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. [Ramachandra Shenoy and Another v. Mrs.                Hilda Brite and Other(4)]      Bearing in mind the above principles we may now look at the will in question as a whole. This will is written in the urdu language.  An official  translation is  placed  on  the record. From the contents of the will we find the background and the  exact position  of relationship  of the parties set out earlier. Gokul was residing with Bhola Chaubey 929 and Smt.  Jarian. It may bear repetition that Gokul was held in great  love and  affection by the testator who was keenly anxious for the welfare both of his wife and of Gokul. There is yet  another feature  which is prominent in the will. The testator was  apprehensive of  his only brother, Ram Raj and his nephew,  Kishnu, who  "might trouble  his wife and Gokul after his death."      From such of the aforesaid prefatory recitals as appear in the  will, two  objects stand  out, namely,  that he  was deeply interested  in the  enjoyment of his property movable and immovable  after his  death by  his wife  and after  her death by  Gokul. The second object was that he intended that his property  should not  fall into the hands of his brother and nephew  who had  been separate from him since long after some arbitration  and even bore ill-will against him and his wife.      After the  above revelation  of his  mental attitude in the will there follows the following recitals:-           "So long  as I,  the executant, am alive, I myself      shall remain  the owner  in possession (malik wa qabiz)      of my  entire movable and immovable property and of the      income from  Birt Jijmani.  After my death Mst. Jarian,      the wedded  wife of  me, the  executant, shall  be  the      owner  (malik)   of  my   entire  estate,  movable  and      immovable, and  of the  income from  Birt  Jijmani  and      shall have  all the proprietary powers (aur usko jamiya      akhtiyarat malikana  hasil honge).  After the  death of      Mst. Jarian,  Gokul aforesaid shall be the owner of the      entire estate  left by  me (malik  kamil jaidad matruka      meri ka  hoga), and  he shall  have all the proprietary      powers and  the power  of making  transfer of all sorts      (aur usko  jamiya akhtiyarat  malikana wa inteqalat har      qism hasil  honge). If  per chance, Mst. Jarian dies in

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    my life time, then Gokul aforesaid will be the absolute      owner (malik  kamil) of  the estate left by me (matrura      meri) and  he shall  have power  of making  all sort of      transfers (aur  usko har  quism ke akhtiyarat inteqalat      hasil honge).  Gokul aforesaid should go to Jijmana and      should continue  to give to Mst. Jarian during her life      time the  charitable gifts  (daan  dakshina)  which  he      brings from there. After her death he might continue to      be  benefited   thereby.  Mst.  Jarian  should  get  my      obsequies, Barsi  (annual  death  ceremony),  Chhamchhi      etc. performed through Gokul aforesaid according to the      custom prevalent  in the  brotherhood. It  will be  the      duty of  Gokul aforesaid to obey and serve my wife Mst.      Jarian. It will be necessary for Mst. Jarian to keep my      heir (waris) Gokul aforesaid and to act in consultation      with him.  At present  I have  the following  immovable      properties and  the Birt  Jijmani. If  in  addition  to      these I  purchase or  get any  property  the  aforesaid      persons shall  be the owners of that also according to.      the aforesaid conditions".      Mr. Naunit  Lal, on  behalf of  the appellant,  submits that since  the testator  stated in  the will that after his death Smt. Jarian "shall be the 930 owner (malik)  of my  entire estate.. and shall have all the proprietary powers  (aur  usko  jamiya  akhtiyarat  malikana hasil honge)",  it is  absolutely clear  that he intended to confer upon  his wife  an  absolute  estate  to  his  entire property. Mr.  G. S.  Pathak, on  behalf of the respondents, contests the proposition.      In support  of his contention, Mr. Naunit Lal draws our attention to  several decisions wherein the word ‘malik’ has been noticed and explained.      The term  ‘malik’ when used in a will or other document as descriptive  of the  position which a devisee or donee is intended to  hold, has  been held  apt to  describe an owner possessed of full proprietary rights, including a full right of alienation,  unless there  is something in the context or in the  surrounding circumstances to indicate that such full proprietary rights  were not  intended to  be conferred, but the meaning  of every  word in  an Indian  will must  always depend upon  the setting  in which it is placed, the subject to which  it is  related, and  the locality  of the testator from which  it  may  receive  its  true  shade  of  meaning. [Sasiman Chowdhurain  and others  v. Shib  Narayan Chowdhury and others (1) ].      We find  observations to  the same  effect in  Musammat surajmani and  others v.  Rabi Nath  ojha and another(2). It is, approved  therein that  in order  to cut  down the  full proprietary rights  that the  word malik  imports  something must be found in the context to qualify it.      Similarly counsel has referred to the expression ‘malik mustakil’ which  was noticed  in a decision of this Court in Krishna Biharilal  v. Gulabchand and Ors.(3), and this Court observed at page 31 as follows:-           "The meaning of the expression ‘malik mustakil’ an      urdu word, has come for consideration before this Court      in some cases. In Dhyan Singh and anr. v. Jugal Kishore      & Anr.(4),  this Court  ruled  that  the  words  ‘malik      mustakil’ were  strong, clear  and unambiguous  and  if      those words  are  not  qualified  by  other  words  and      circumstances  appearing  in  the  same  document,  the      courts must  hold that  the estate given is an absolute      one      We are,  however, not  required to  consider the  words

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‘malik mustakil’  in this  case. But  it is  clear that even those  words   can  be   qualified  by   other   words   and circumstances appearing in the same document.      It is,  therefore, abundantly  clear that the intention of the  testator will  have to  be  gathered  from  all  the relevant and  material contents  in the  entire will made in the situation  in which  the testator  was placed in life in the back  ground of  his property, his inclinations, wishes, desires and  attitudes as  can be  clearly and unambiguously found either  from the  recitals from the instrument or from absolutely  undoubted   contemporaneous  legally  admissible evidence. 931      Reading the  present will  as  a  whole  and  if  every disposition has  to be  rationally harmonised,  we find that the testator  intended a life estate for his wife so long as she lived.  This is consistent with his description of Gokul as  "my  heir  (waris)"  after  his  death.  It  is  further consistent with the recital that "if per chance, Mst. Jarian dies in  my life  time, then  Gokul aforesaid  will  be  the absolute owner  (malik kamil)  of  the  estate  left  by  me (matruka meri)  and he  shall have power of making all sorts of transfers  (aur usko  har quism  ke akhtiyarat  inteqalat hasil honge)".  In obvious  contrast even though Smt. Jarian was made  the malik  of his  entire estate  after his  death "having all  the proprietary rights" nothing is stated about her "power  of making all sorts of transfers" which power is expressly mentioned as belonging to him and also exclusively conferred  upon  Gokul  after  Smt.  Jarian’s  death.  While describing his  own "proprietary  powers" the  testator made reference to  his "power  of making transfers of all sorts". This power  of making  transfer which  was prominent  in the mind of the testator at the time of execution of the will is conspicuous by  total omission  in relation to Smt. Jarian’s enjoyment of the property.      We have  to give  due importance  to the lexicon in the will and  we find  that the  testator has  made  a  definite distinction between mere ownership of property and ownership of the same coupled with powers of transfer "in every way".      Ordinarily, however,  without such  clear evidence from the recitals  in the  will itself  it may not be possible to hold that  ownership of  property, which is devised, without any thing  more, would not connote absolute ownership of the same with the power of alienation.      There is  another significant  feature in the recitals, when reference  is made in the will to acquisition of future property. Says  the testator  "if in  addition  to  these  I purchase or  get any property the aforesaid persons shall be the  owners   of  that   also  according  to  the  aforesaid conditions". The  testator thus  unerringly conceives of any future property being owned by both, by the widow during her life time and by Gokul after her death in the same manner as the  property   that  had   already  been   bequeathed.  The expression  "according  to  the  aforesaid  conditions"  is, therefore, very  significant in  the context.  We also  find that during  her life  time Gokul  would be collecting "daan dakshina" of  the jijmani to Smt. Jarian and after her death Gokul would enjoy the same. There is no contemplation of any possibility  to  deprive  Gokul  of  the  enjoyment  of  the property in any event.      All the  above features run counter to the theory of an absolute estate  in favour  of Smt.  Jarian. There  is still another clinching factor. It is clear from the will that the testator had  misunderstanding and quarrels with his brother regarding ancestral  property  and  the  matter  had  to  be

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settled by  arbitration leading  to partition  and  separate enjoyment of  property as  far back as 1889. It also appears from the recitals in the will that he had grave apprehension that after  his death his only reversioners, his brother and nephew, "might trouble and harass my wife Mst. Jarian and my sister’s son  Gokul." One  thing was,  therefore, clear that the testator never intended that his property should pass to his brother and nephew. This intention of the testator would 932 best be  achieved by  holding that  there was  a devise of a life estate to his wife and an absolute estate thereafter to Gokul indicating  a different  line of  inheritance  in  the will. On  the other  hand, if any absolute estate would have been conferred  on the widow, then on her death the property would have  passed on  by inheritance to her husband’s heirs who were  none else  than the  brother and the nephew of the testator. There  was no other heir of Mst. Jarian to inherit the property after her death.      A Plenitude  of absolute  estate in  favour of the wife will make the absolute bequest to Gokul void in law. No such repugnant interpretation  detrimental  to  the  interest  of Gokul can  be made  in the  light of the entire tenor of the instrument.      Having regard  to the  context  and  the  circumstances apparent from  the will,  we are clearly of opinion that the testator intended  to bequeath in favour of his widow only a life estate and after her death an absolute estate to Gokul. That being the position the will by Smt. Jarian in favour of the appellant  fails and her gift in favour of the appellant also similarly  fails on her death. The respondent’s suit is rightly decreed by the courts below. The appeal fails and is dismissed. We will, however, make no order as to costs. S.B.                                       Appeal dismissed. 933