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15. The suit is brought by a Hindu widow for possession of the immoveable and moveable property of her deceased husband, who died childless, and she was entitled as her husband's widow to take possession of his estate on his death, except so far as his will may have given the right of possession to any other person.

16. Now, as regards the immoveable property, I do not think that if the gift to the testator's nephews be void, there is in the will any disposition of the immoveable property at all, I read the clause which directs the defendant Doorgamoney out of the rents and interest to support his nephew, as dependent on the clause disposing of the corpus which preceded it, so that if one falls the other falls also. The allusion by the testator to his wife's maintenance in this clause is evidently a mistake, and that provision of the will is superfluous, as her maintenance had already been provided for in another way. As to the immoveable property, therefore, if the gift to the sons of Woody be void, the plaintiff was entitled to immediate possession on the death of her husband, and the cause of action arose at that date.

31. I wish to say at once that I entirely agree in the general propositions laid down by the learned Judge below that if there be a gift to a class, some members of which cannot legally take, the whole gift is void. The principles upon which this rule is based, as explained in Leake v. Robinson (2 Mer., 364) and the text-books and other decisions in which that case is commented upon, are broad principles of construction, which are, in my opinion, applicable to the wills of all persons alike.

32. The doubt I have had is, whether any defect can be imported to the gift in this case. It is undoubtedly a gift to a class, but is it a gift to a class some members of which cannot legally take?

33. It is said that, inasmuch as the gift includes persons not in existence at the death of the testator, the gift as to those persons is void upon the principle laid done in Tagore v. Tagore (9 B.L.R., 377). The Privy Council there say of the Hindu law as to gifts inter vivos, that it applies to all persons in existence and capable of taking from the donor at the time when the gift is to take effect, so as to fall within the principle expressed in the Dayabhaga, chap i, v. 21. They then say of wills, that they are a form of gifts, and that a will "is a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated beneficiaries. They take upon the death of the testator as they would if he had given the property to them in his lifetime, There is no law expressly and in terms applicable to persons who can so take. The law of wills has, however, grown up, so to speak, naturally from a law which furnishes no analogy, but that of gifts, and it is the duty of a tribunal dealing with a case new in the instance, to be governed by the established principles and the analogies which have heretofore prevailed in like cases". Further on they say,--"The analogous law in this case is to be found in that applicable to gifts, and even if wills were not universally to be regarded in all respects as gifts to take effect upon death, they are generally so to be regarded as to the property which they can transfer, and the persons to whom it can be transferred"; and then they conclude,--"that a person capable of taking under a will must be such a person as could take a gift inter vivos, and, therefore, must, either in fact, or in contemplation of law, be in existence at the death of the testator".