By a settlement deed of 1935, the owner of certain properties settled three itemll df property on his wife and two sons, the first appellant and respondent one item for each. Mutations were effected of the properties so settled in favour of the donees. Thereafter, he had executed three wills. In his last will and testament, there are two recitals that he had c cancelled the previous settlement deed and wills and that the last will was to be the only document which should govern the disposition of his pro- perties. The testator, by that will, also purported to give to the respon- dent five items of property. ThOSe five items did not include the item settled on the respondent in 1935, but included certain properties which had been 'l"ttled in 1935 on the wifr and the first appellant. The testator further stated that the entire residue was bequeathed to the first appellant, D but did not state specifically that he was giving away to the first appellant the property which he had settled on the respondent in 1935. After the death of the testator the respondent filed a suit claiming the item settled on him in 1935, on the basis that he had a right under the will to get the five items bequeathed to him thereby, in addition to the item settled on b.im in 19"35, because, by reason of the settlement in his favour it could not form the subject matter of the bequest in favour of the first appellant.
