February 13, 1904.1
To amount paid on account of additional sanitary ar- rangemente for No. 1. ock
To amount paid on account
179.0
of moulding-hop extension 10,634.00
To amount paid on account of joiner's shop extension To amount paid on account of shipyard and boiler shop extension
To amount paid on acoou t of sawmill converting shed into store
To amount paid on account
of new power house
To cost of patent plate bend- ing rolls for ship-yard
To cost of new baud saws for
sawmill
To cost of surface condensing plants, engines, dynamos, electric motors, &c., for new power house
for engine shop.
13,83 1,00
14,529,00
1.077.0
30,054.0
22,405,42
655.00
103,637.23
To cost of new machine tools
9,936.87
To cost of new machine t ols
for brass shop
5,862.85
Cosmopolitan.
To value of Cosmopolitan Dock, as per last state- mie. t
3-2,772.04
Less amount since written
off...
2,772.04
To value of tugs, dredgers, launches and
lighters
To sundry debtors
To value of material on han-l
31st l'ec., 190. ·
LIABILITIES.
-2,142,599.35
By shareholders for 5, 10 shares of $50
each, fully paid up
By Admiralty loan ... £20,000 0,0 Less re-payments 14,236 9.3
£5,763 10.9 at 17 per cent.
By marine insurance account
By sundry creditors
$ C.
CHINA OVERLAND TRADE REPORT.
granted in this Colony on 1st November, 1889. The original will was made in Portuguese at Macao. The domicile of the testator was, I anders and, Portuguese. The passage of the translated will to which I am asked to give effect r lates, to certain leasehold properties in Hongkong (immovable property, that is to say). in which he first gave his wife a life interes'. She died about 14th May. 1902. and with reference to such arent, the testator's will proo-eds as follows: "I further determine that, after the death of my wife, the iucome of the said properties in Hong kong, after deduct:ng Crown rent to the local Gvernment, insurance charges or repairs, be divided between our children of the first and
Į
second marriages in stirpes et non in capita, and this I leave to the discretion of my executors whether these properties should be preserved without being sold, but in case they are sold, the proceeds shall be divided, in stirpes et non in capita, between our children of the first and second marriages.” it seems that the testator was twice married, and that his second wife was, when she married him, a widow, having been previously married to one U. C. V. de Figuerido, by whom she had children. There were, therefore, three families de- rived from three stocas, viz., the children of the 300,000.00
Lestator by his first wife, the children of the 438,006.00 testator by his second wife, and the children of 270,603.44 his second wife by her first husband. Now, 1,6-7,720.45 construing the will according to English $4,878.928.84
law or the law of Hongkong, which is the same in this instance, it seems quite clear that the proper way to distribute the property would be, not lo abant h ads (capita) but to regard the 2,5 1,000,00 | origin of the children, the stocks or stems or roots (the stirpes) from which they sprang, and to divide the property into three equal shares as 72.562.88 representing the three stirpes. Of these three equa' shares the children of the testator's first 72,563.83 marriage, living at the time of his death, 1,46,174.:2
ought to have one, divided equally between them; the child or children of the testator's second marriage, living at the time of his death, ought to have another share divided equally between them; and the children of the tesiator's second wife, by her first husband, living at the time of the testator's death, ought to have the remaining share divided equally $ C. 58.462.39
among them. It must be borne in mind 3,062.45 that leaseholds are immovable property, and Mr. 3,528.75 Dicey accurately lays down, in his "Conflict of Laws," the proposition that, Geneally 38,967.59 18,507.00
speaking, all questions touching the validity, 2,836.04 construction, and effect of wills relating to immovables are determined by the lex situs. It was stated that the executors have sold the
By balance of profit brought
forward from last account $311,293.70
By profit
514,396.34
REVENUE A COUNT
31st Dec., 19:3.
To interest.
To Crown rent
To fire insurance
828,690.4 $4.878,928.81
To office expenses. salar.os, stationery and
rent of head office
To rawing office expenses and salaries To telegrams
To leg 1 expenses.....
To marine insurance account
To profit......
Ist July to 31st Dec., 19-3.
By Let earnings of the Company's three
establishments
By towage, net earnings
By dredger, not earnings
By bonus on insurance prema, &c...
SUPREME C
634.30 8,750. 0
$629,204.46
C.
6.2 886.0
1,201.52
4,877 19
Ꮜ Ꭱ Ꭲ .
Tuesday, 9th February.
IN ORIGINAL JURISDICTION.
**
8 some-
131
obrions to me that, when the testator said he wishes the proprty div ded in stirpes et non in capita between our children of the first and second marriages, he meant that he did not wish each child to have an equal share, but that he wished the children of his first marriage to hav one share between them, the children of his second marriage another, and the children of his second wife's first marriage to have this remaining shi
ie between them. It is difficult to see how he could have used apter words briefly to convey his meaning. It was, however, chutended by the counsel for the executors that he used them with a view of letting in the descendants of any of the children who might die before the testator; that is to say, he wished the grand-children to stand in the place of their deceased parents, where such parents came with- in the meaning of "our children of the first and second marriages." In the case of intestacy. children are allowed to stand in their parents' 1 lace. It was so by Roman law, and it is so by English law and Portuguese law, but this is not a cuse of intestacy, but of construing a will, and at has been the law of England for the last cen- tury or more that where there is a bequest to children as a class and there are any such child- ren living at the death of the testator, grand. childr.n are not allowed to stand in the place of deceased children. This was decided in 1804 in the case of Radcliffe v. Buckley, 10 Vesey (Junior) page 195. See the judgment of the Master of the Rolls on page 21.
In that case the testator left the residue of his property to the children of his four deceased brothers aud deceased sister (naming the bothers and sister; "to be equally divided among them in their re pecive parents' stad per stirp.8, and not per capita, share and share alike if more than one, and if but one then I give the same whole to that one." The sister had no children living at the time the will was made, and the testator knew it, but she had gr ndchildren living at It was the date of the death of the testator. urged that the grandchildren were entitled to take per stirpes in the place of their parents, who were deceased children of the sister. The Master of the Rolls, however, held that they could not do so, and that only the child- ren could take, and that the children were to be thrown into families, they were to iu their parents' stead per stirpes and not per capita and that each set of children was to have an equal share of the residue, Indeed, in the case of the Earl of Orford v. Churchil', reported in 3, Vesey and Beames Reports, page 59, the Master of the Rolls, ten years later, viz., in 1814, says: "I never knew an instance where there were children to
take
514, 96.34 leaseholds, but in this case I think the "proceeds' answer the proper description, that grand- should be dealt with in the same way as the children were permitted to share along with "incoine would have been, had the leaseholds them, although where there is a total want of not been sold. I expres ed my views as to the children. grandchildren have been let in under construction of this will in September, 1902, but a liberal construction of the word children." it was represented to me by the counsel for the The words of the Wills Act, 1 Vict.. cap. 26, ex cutors that when the testator used the sec. 33, do not apply to gifts to a class, for the 939.75 expressions as to stirpes and capita he meant to intention was to provide against lapse m rely, use them with the meaning they would have in and not to alter the construction to be put on $629,206.46 Portuguese law, as he was acquainted the will. Sec. 2 Williams on Executors, page with that law, haring at one time been 1086. The contention од the part of the acting Chief Justice of Macao, and I under- counsel for the executo:s was that we must stood it
was suggested they had
look for the stirpes among the children, and what different meaning in Portuguese law from that the grand-children were intended to take what they had in English law. I, therefore, in stirpes and the surviving children were allowed the parties to obtain and lay before me to take in capita, and Robinson v. Shepherd, 10 the evidence of experts in Portuguese law, which, Jurist,-new series, p. 53, and Re Wilson, 24, I am informed, is identical, in this instance, Chancery Division, p. 664, were cited. In my with the law of Macao, as to the meaning of opinion t at is not the true construction of this the passage in the will containing those expres- will. None of the children were to take sions, according to the Portuguese law. Un-in capita; they were to take in stirpes,
that the fortunately, the opinions of the experts are by and therefore I hold no means unanimous, and most of them do not tion cannot be supported. Finally, at the last confine those opinions to the precise point I hearing it was contended that the Portuguese wanted to know. It now, however, words nossos filhos ought to have a broader seems clear 88 I always expected that interpretation than our children"; in fact, the terms in stirpes and in capita mean might be treated as equivalent to precisely the same in Portuguese law as in Eng issue." This is the first time that any lish law. Those expressions have been imported fault has been found with the transla from the Roman law into the English law, as tion submitted to the court more than fourteen well as into the law of Portugal, and of those years ago, when the probate was granted, and other European nations whose law is, more or the reasons given for extending the messing less, directly founded on Roman law. They do not convince me that the translation is wereexpressions familiar to the Roman lawyers, incorrect. In conclusion I may add that some and their meaning is clear enough. In the of the Portuguese experts, in giving their third book of Justinian's Institutes, compiled opinion suggest that the testator has included in in the first half of the sixth century, they are the leaseholds bequeathed by him his wife's used with the same meaning as they have now. interest therein, and that he could only bequeath See title 1, head 6. It seems, therefore, what belonged solely to himself. That is a
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE). [IN CHAMBERS].
GOMES T. GOMES.
1
His Lordship in delivering Judgment in this case aid :—
This was a summons taken out by Antonio Simplicio Gomes, the sole surviving child of the testator's second marriage, against Francisco d'Assis Gomes and Augusto José Gomes, the executors of the will of one João Baptista Gomes, deceased, to determine the question to what share of certain property bequeathed by the testator was the said A. 8, G mes entitled under the said will." Mr. M. W. Slade appeared for the plaintiff, and Mr. E. W. Sharp, K.C, for the defendants,
.
The will was dated 20th August, 1887. The testator died 2nd September, 1889. Probate was
onnten-
"our