158
SUPREME COURT.
Tuesday, 5th March.
IN ORIGINAL JURISDICTION.
BEFORE SIR Francis Piggott (Chief JUSTICE).
THE I PERSONATION CASE.
The Chief Justice delivered judgment in the action brought by Cheung Shu against
Ma Fu San.
Mr. M. W. Slade, instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiff, the defendaut being represented by Sir Henry Berkeley, K.C., and Hou. Mr. H. E. Pollock, K.C., who were instructed by Mr. C. F. Dixon (of Messra, Hastings' office).
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His Honour said :—I have already given judgment on the facts of this case reserving the points of law for fuller consideration : with these points I now proceed to deal. The first point is whether in a Civil action in which the plaintiff sues as Executor, producing the pro- bate, it is competent for the defendant to deny the death of the testator. This point is decided in the affirmative in Allen v. Dundas (3 T. R. at page 130) and in Moons v. De Bernales (1. Russ. 301): the reason given in the earlier casa b. ing that if in fact the person is living the Court has no jurisdiction and the probate can have no effect. These cases are still cited as authorities (see William on Executors 10th Ed. p. 440 et sig.) but I suppose they could not apply where the Court of Probate has, in con- tentious preceedings, expressly found the death of the Testator to be a fact: for that would be to impeach the judgment of Court. I admitted evid. ence to show that the alleged testator was alive, and have found as a fact that bewas dead. I have also held that the defendant is not a bona fide mortgagee within the meaning of the section. But even if he himself had beau perfectly bona fide "registration cannot make good an instru. ment which is otherwise fraudulent and void (Dart vol I p. 699), and I have found this mortgage to be fraudulent and therefore roid. I must bowerer deal with the point which arises as to the construction of the Land Registration Ordinance, No. 1 of 1844- which is exceedingly troublesome. That Ordinance was passed to prevent secret and fraudulent conveyancer, and to provide means whereby the title to real and immoveable property may be easily traced and ascertained. It provides that wills, as well as judgments and other documents affecting lands tenements or pre- mises in the Colony, are to be registered in the case of wills, within one month after the death of the devisor, if he dies in the Colouy, and within 12 months if he dies elsewhere. The effect is twofold: 1st. The wills are to take priority if registered within the prescribed delays, not according to the dates of registration, but "only in the same manner A8 if the Ordinance had not been passed." Secondly If they are not registered within these delays respectively, they are to be absolutely null and void as against subsequent bona fide purchasers or mortgagees for valuable consideration : and then are to take priority according to their dates of registration. The questions I have to decide are :—1st. Whether probates of wills affecting leaseholds must be regis. tered
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THE HONGKONG WEEKLY PRESS AND
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the Land Officer would be justified in register- Į accurate, the plaintiff's father O Yik ing a will unless probate had been granted, Tong on his behalf purchased some because he would be putting on the register a few years ago an old Chinese gunboat, and person who by law has no title.
This at spent considerable sums of money in converting once indicates one of the reasonS why her into a merchant vessel for the purpose of the law should be construed strictly according coastwise trade, in putting her into a seaworthy to the words used in it. On the other hand I condition, and generally in effecting improve. must note that the Ordinance only provides ments on her. He named her the “Macso.' for the registration of a "memorial," that He had never insured her on her voyages; but is of certain particulars of the will, verified in the mouth of August, 1906, having in by affidavit; and there is nothing that I can see contemplation a somewhat longer voyage than which compels the production of the will itself nsnal, to Amoy, about the middle of the sosuing in the Land Office, thongh I have no doubt that. month, he endeavoured to effect an insurance on the Land Officer would not be justified in ber for fifty or sixty thousand dollars, his a will until the estimate of her registering a memorial of
value being "ninety odd thousand." He seems to have had some difficulty probate had been produced, the registration of a memorial of a will deposited in the Registry at first in doing this, but at length matters for Probate is therefore possible: and were arranged through an intermediary, with the this rally disposes of the first point, for if the defendant Company, who first agreed to taka a Ordinance can be complied with, it is unneces-
risk
up to $3,000; but afterwards, or or about for will in the 14th Angust, they agreed to take up $10,000 if sary to substitute "probate
the plaintiff would himself insure her for the Ordinance. If it were necessary however, I should not do it, for there is no warrant for such remaining $55,000, he having given her value a change and 1 may point out that in many of at $95,000, and would not insure in any other the sections of the Yorkshire Registry Act, 1884, | company. The Policy was signed during the it has been thought advisable to refer to pro- afternoon of 17th September, being timed to bates as well as to wills. I have therefore to take effect from 7 p.m. on the day the final consider whether the Act requires memorial of discussion took place. On the morning of the wills of leaseholds to be registered. First, 18th a disastrous typhoon swept over the is there any reason why it should have ga harbour, and the vessel sank before she started
on her voyage.
The curious part of the case is provided? If there were any clear reason,
that the Fook On Company seems never to have should be going coutrary to the manifest inten- tion of the Act in holding otherwise. I think | insured a vessel before, A few days after there is no such reason. The law provided for the Macao" sauk 8 claim was made the re.istration of wills of realty because they for payment of the insurance; the com. are documents of title, and there is no other pany repudiated all liability, од the official record of them. The legislature omitted | following defiuite grounds-that the vessel. to observe that there is no reali in the Colony ¦ had not started ou her voyage, and that the devisable by will but that is beside the point, premium had not been paid, but only guaran. But. for wills of personalty the law tet, Later on, the company based its refusal
meaux provided another
af
giving on another ground, which is in fact the de- M88 US of Probate, fence raised in this action, that the policy publicity to them: by which is a public document, and the public | was an open sud not a "valued" policy, have access to the Probate Registry for search. and that the Company was only liable to pay But there are many reasons why it should not | 40 96 the. of the real value of the ship. Now bare so provided. I am sure, as I bare said, that a will which has not been admitted to
has
probate could not
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OF should not be regis. tered. There is thus a mauifest possibility of a clash between the requirements of the two laws of Probate and of Land Registry; the most obvious being a delay in the grant of probate, which might preclude the registration 10 the Land Office within the requisite limits of time, and there is no provision made for extending the time allowed for registration. Again, when wills are registered out of time, the question of priority arises, and then between two probates assuming the wills to deal with the same property, which is manifestly incon sistent with legal consequenc»s, attached to probate. Therefore I come are construc- tion, and I find that the words used in 8. 6 of the Ordinance with regard to memorials are in- apt to wills of leas-holds. The registration of memoral of the will is to be by the "devisee,“ and the tes'ator is called the devisor." There is Do such thing as devise of leaseholds. Then again, how is the person entitled under the will, in its largest possible constructing devisee meaning, to get hold of the will or the probate in order to prepare the memorial: quite apart from the short time, in the case where the
testator has died in the Colony, within which he would have to do it? For these reasons I am of opinion that wills of leasehold do not cone within the provisions of the Land Registry Ordinance. I am re-inforced in this opinion by the fact that there
on the Middlesex Registration Act, in Underhill's Encyclopaedia of Forms and Precedents (vol. xi., p. 270), to the same effect.
is a note
O YAN TSAI v. FOOK ON INSURANCE COMPANY,
The Chief Justice gave judgment in this action.
in order to obtain the benefits of the Ordinance in other words, whether I am justified in substituting probate for wills in the Ordinance. Secondly: Whether, in spite of the provisions of the Probate Law, wills affecting leaseholds must be registered in order to obtain the benefits of the Ordinance. With regard in the second point I have been much perplexed by the fact that an Executor's first duty is to deposit the will in the Registry of the Supreme Court for purposes of Probate, and that thereafter the Registrar cannot part with the original will. It would seem therofore, if this were the proper
con struction of the Ordinance, as if the Ex- ecutor was bound to call in at the Land Office to register the will on his way to the Registry His Honour said: - Haring admitted of the Court. But if this were to be the vid-nce in order to clear up what I held to be a practice, all sorts of difficulties might | latent ambiguity in the policy sued on in this arise, for will might be registered | case, I have now to consider the effect of that in the Land Office, which might never be evidence. It reveals a very remarkabin case of admitted to probate. I doubt however whether coincidence. The plaintiff, or to be more
Mr. M. W. Slade, instructed by Mr. C. F. Dixon (of Mr. John Hastings' office) appeared for the plaintiff, while Hon. Mr. H. E. Pol- lock K.C., instructed br Mr. Jackson (of Meners, John OD, Stokes aod
Master), represented the defendants.
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there is not the slightest objection in law that I can see to the new position thus takeu by the Company, though of course it may be matter of comment. They may have put for. ward untenable reasons for non-payment at first, and when they have consulted their legal advisers, they may
put forward 80 еп. on which tirely new ground of defence, they are entitled to succeed if it is a But this correspondence which good defence. was not put in but the purport of which the Company's Secretary admitted, does to my mind throw some light on what actually hap pened when the insurance was entered into: and unfortunately the advice he seems to have received has so tinged the recollection of the Secretary who conducted the negociations, as to what took place, as to induce me with reluctance to say that I do not believe his evidence он a very material point. I now turn to the evidence of what took place which led to the use of the ambiguous term in the policy
I have no doubt that O Yik $95,001," Tong is right in his figures. I am satisfied be bas expended $95,000 on the that vessel though I am not quite satisfied that the whole of that sum would properly be taken to be her value if I were to hold that the policy is an open one. for some part of it, though how much I'cannot say, seems to have been for repairs in consequence of ordinary wear and tear. On the other hand, I could not accept the valuation of Captain Douglas though I feel quite sure it is an accurate valuation of the market value of the ship-as the basis on which I should
the estimated value of the vessel is
#stimate her insurable value. It seems to me that to do this would destroy the quality of an insurance, that it is a contract of indemnity; for it is quite clear that the amount given by Captain Douglas would not enable the plaintiff to retrieve the position in which he was prior to the loss of the vessel, that is, again to become the owner of a freight-earning ship. The question whether a person who insures an old thing. whether it be a ship or any thing elon - in entitled to be paid a sum which would purchase a new thing, is the practical question which must often present itself to Insurance Con, and I am not sure that the law on help very much. There is no doubt that in some cases, an in the case of a house, the person who takes out a policy may be in a better position—having