i.
February 15, 1909.]
SUPREME COURT.
Monday, February 8th.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
MOTION TO STRIKE OUT A STATEMENT OF CLAIM.
In the action in which Chan Ma Shi was plaintiff, and Fung Wa Chun defendant, Sir Henry Berkeley, K.C., who was instructed by Mr. W. E. L. Shenton (of Messrs. Deacon, Looker and Deacon), moved to strike out the statement of claim on the ground that it showed no reasonable cause. of action. Hon. Mr. H. E. Pollock, K.C., who was instructed by Mr. Jackson (of Messrs. Johnson, Stokes and Master) appeared for the plaintiff.
Sir Henry Berkeley stated that this summons had been adjourned from Chambers into Court. It involved argument principally as to what was a reasonable cause of action, and whether the plaintiffs had 8 reasonable cause of Botion. He submitted that on the facts alleged in the statement of claim there WES NO reasonable cause of action, because there was no cause of action at all against the defendant. Unless the pleadings were amended the statement of claim should be struck out and the action dismissed. Further, he submitted that no amendment which could properly be admitted could be made that should give a cause of action. This action was an action for detinue to recover certificates of shares in companies. The nature of the action was important, and it was necessary to bear that in mind because of the allegation that no reasonable cause of action Was disclosed in a case of detinue.
The plaintiff must, on the face of the pleadings, show title in himself. Mr. Pollock, in his pleadings, alleged that these shares had been made a gift to the plaintiff by her husband. That was not a fact. It was bad pleading. It was a conclusion of law, but he ought to have stated the facts which constituted in law a gift. There were no facts in this statement of claim from which the Court could come to the conclusion that a gift. was made.
His Lordship-In pleadings you are not required to set out evidence. Why cannot you allege a gift?
Sir Henry Berkeley-Because you cannot plead law. I submit the allegation of a gift s an allegation in law, not an allegation in fact. Proceeding, counsel said that if the plaintiff had said her husband handed to her certain certificates, that would be a fact from which the ⚫ourt could assume a gift. Another allegation in the pleadings was to the effect that the shares were now registered in the husband's name, therefore he was the only person who could be plaintiff to recover these certificates from the defendant. He was not arguing that the plaintiff had no beneficial interest in the pro- perty, but he argued that she could not succeed in this action. The statement of claim was bad from certainty as to the articles sought to be recovered. They should have given the specific nature of the property required to be retained.
Mr. Pollock raised the preliminary point that this application was wholly misconceived, and that as a matter of fact the defendant was altogether out of order, speaking from a legal point of view, in bringing forward this applica- tion. He thought it quite sufficient to say in the pleadings that a gift was made. Again, the wife had given to her as part of the gift, a power of attorney which enabled her to transfer these shares.
His Lordship-I must see whether cause of action lies in the four corners of this paragraph. Mr. Pollock contended that a gift implied power for the receiver to deal with it. Had the plaintiff a right to sue in detinue? Surely his friend was driven on the horns of one of these dilemmas; either the wife could sue or the husband could sue. Either these shares re- mained the property of the husband, or else they had been given to the wife.
His Lordship The curious thing is that in paragraph 4 you don't allege a gift.
Mr. Pollock-The shares were bought in the first place with her money.
CHINA OVERLAND TRADE REPORT.
His Lordship said the plaintiff was in fact suing for fresh certificates which on the face | of the paragraph in the pleadings it was im- possible for her to obtain, Mr. Pollock had put everything he could, but his Lordship thought paragraph 3 of the pleadings ought to be amended. He would make costs in the
cause.
Thursday, February 11th.
IN PROBATE JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
SETTLING THE CONSTRUCTION OF A WILL.
His Honour gave his decision with regard to the true construction to be placed on the will❘ of the late Joao Antonio da Silva, The plain- tiff in this friendly action was J. M. P. da Silva, son of deceased and executor of the will, the defendant being M. A. P. da Silva, widow of deceased.
Sir Henry Berkeley, K.C., instructed by Mr. H. K. Holmes, represented the plaintiff, and the Hon. Mr. H. E. Pollock, K.C., who was instructed by Mr. Otto Kong Sing, appeared for the defendant.
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can go on uninterruptedly after they are dead." I do not find it very difficult to imagine that a husband, reposing, all confid- ence in his wife, should in some respecta continue to repose that confidence in her when he is writing his will, expecting her to justify it after his death. Mr. da Silva's intention throughout the will is to my mind clearly manifested; his widow is to continue his posi- tion as head of the family, and is to enjoy his property in the same way as he himself did while he was alive. With regard to the bulk of property he makes an ultimate disposition in favour of his children which is no more than carrying out his original intentions when he invested his money in shares. With regard to the furniture and other moveables, he de- sires the widow to have the same control over it as he had himself; she may dispose of it as he might dispose of it. He does not want her, it is true, to have it, should she marry again, but so long as she does not marry again it seems to me that he intended to repose sufficient confidence in her not to dispose of it entirely so he has given her a power of disposition while she remains a widow, which he believes she will exercise reasonably; but if she marries again, then her power over it is to cease. It is to be noticed that there is no special gift with regard to the furniture, etc.; it would in the event of her death or re-marriage, go into the general personal estate. I do not think this is unreasonable, and certainly reading the affidavits Mrs. da Silva has done nothing which would lead me to suppose that she takes any other view than the one I have expressed, though, of course, in view of these proceedings, she has been compelled to claim the full benefit of the last words of the clause, Nothing that she has done would have justified hostile proceedings; but I am told, and I hope it is so, that this is a friendly suit, and all parties desire my opinion, which I will now try to give formal expression to. I believe the testator's intention to have been to give his widow a reasonable power of disposal of these things so long as she remains a widow. The reason- ableness is a question for the Court, and should the family think that any disposition of the furniture which she may make in the future is unreasonable, as, for example, if she were getting rid of it all, then they must apply to the Court to stop it. It seems to me, however, that this expression of my views as to the testator's intention will check, on the one hand, Mrs, da Silva from making such an unreasonable disposition of the property as her late husband would dis- approve of--though I do not mean to suggest that she has any such intention; and on the other hand will check the family from making any application which the Court may think unreasonable to stop such dispositions as she may choose to make. This, I think, should be a sufficient guide to the conduct of all parties for the future and prevent unseemly family disputes in a matter which to my mind seems exceedingly plain.
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His Lordship said-Mr. da Silva died leaving a will in which this clause appears, "I give, devise and bequeath to my wife, Maria Antonio Place da Silva, as long as she remains a widow, all my household furniture, jewellery, silver- ware, electroplated ware, library, philosophical instruments, and effects of every description for her use, and she may dispose of them as she thinks fit." This was subject to a special bequest of the piano to his daughter, and to a collection of coins which he desired should be treated as heirlooms I have to decide whether this gives the widow an absolute interest in this property, as would appear from the last words of the clause giving her a power of dis- position, or whether it is only an interest so long ag she remains a widow, which would deprive her of any power of disposition, and would make an inventory necessary for the purpose of checking any action which she might take with regard to them. It appears that some small trinkets have in fact been given by her to some of her children on the assumption that she had an absoluto right of disposition. I am of opinion in the first place that the words "she may dispose of them as she thinks fit" mean "she may dispose of them as she thinks fit. Therefore, apparently we have two sen- tences in the same part of the will which are in contradiction. For the family it is argued, and I think very plausibly, that if the power of disposition were maintained it would nullify the word so long as she remains a widow," because it would enable the widow, for example, to give this property to a man whom she intended to marry the next day.? But this a priori argument may be met by another; she might find herself in financial difficulties from which the sale of some of this property might relieve her, and she would be unable to do so, though apparently her husband intended to give her power to dispose of it. I was referred to a good many cases by both sides, but in deciding the question Ineed not go beyond two elementary principles: first that I must discover the true intention of the testator and give effect to if the second, which is given in Williams, ninth edition, page 934-" the Court is bound to give effect to every word of the will, without change or rejection provided an effect can be given to it, not inconsistent with the general intent of the whole will taken together." Now, although all the other clauses of the will give the wife an interest in all the different kindt of property "so long as she remains a widow," I do not think that I am bound to construe the fifth clause in the same way, and thus reject the last words of it. The insertion of these words itself shows that I should be wrong in doing so. Is it then possible to give an in- telligent meaning to the clause "giving effect to every word without change or rejection"? I have given the question much thought, and I have come to the conclusion that can do so; people who make wills, though the law dubs them "testators' are still human beings; and they are apt to believe that what has gone. on, and is going on while they are alive,
Sir Henry Berkeley asked his Lordship to decide regarding the disposal of the coins.
His Lordship-That question is covered by the law of heirlooms. They go to the heir.
Mr. Pollock-They go to whoever is entitled to the estate for the time being.
His Lordship-I think we settled what was to be done last time. It is only a question of custody: the parties must arrange.
Sir Henry Berkeley-The eldest son should have them.
His Lordship-The eldest son and widow must try to arrange.
Mr. Pollock then raised the question of disposal, and submitted that the widow had a power to dispose of the property.
His Lordship-That is not my view at all. I don't think that could have been the testator's intention in this case. I am not disposed to assent to that. I have tried to give a human, not
a legal, intention,
Mr. Pollock-After her death what is to happen?
His Lordship-It goes into the residue. Sir Henry Berkeley submitted that on the true intention of the will repairs and insurance should be paid out of the income.
His Lordship decided that ordinary repairs and insurance were covered by clause 25 of the will.
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