1920-06-25 — Page 3

INTERESTING PROBATE

ACTION.

THE STATUS OF A CONCUBINE.

CHINESE-LAW AND BRITISH LAW.

JUDOMENT YOB PLAINTIFT.

A judgment of unusual interest and im. portance was delivered by Mr. H. H, J. Gompertz, Acting Chief Justice, in the Supreme Court, yesterday, in a civil action heb has been ponding since 1913, in which it is believed several lakhs of dollars are involved Chinese woman named Hb Cheap Shr claimed, as administratrix of the entire of one Ho Wo Lam, from Ho Ngok Lau, for an account of the deceased's share in the Wah. Kee firm in Hongkong, on behalf of Ho Sbau Yan, alad 15 years old, who was adopted in infancy by Ho Wo Lam.

THE HONGKONG

DAILY PRESS, FRIDAY, JUNE 26TH, 1920.-

I agree with Mr. Potter that the only graph 7 of the amended statement of de question beforo the Fall Court in Ho Tex fence. It is urged that it is contrary Tyun's case 10 H.K.LR. 6 way--what was Chinese customary law to allow this plain the law governing the distribation of the tiff who is a woman, the concubine of the leaseholds of a Chiñose intestate The intestate, to administer.bis esiste. This importance of the decision lies of course is supported by the evidenes Ho Chui in the recognition for the first time in this Pong who was called as an expart. I do Cours of the principle that in this can not attach greas weight to his testimony. noction domicile is immaterial, and that the He is a clansman and a fellow villager Chinese law of distribution is part of the of the defendant; and apart from this his law of the Colony. But the decision gois demanour was not altogether that of an no further. It is interesting to vote that unprejudicesi man. I prefer to take what

on was said on this point by Mrs Ross wh be intentary in that case arose bequest for ancestral worship being fount is of course an entirely independent wit It appears that in China, as in one bud, us offending against the perpetuition o rue; à decision, as counsel points out; in other countries, the female sex is under cer- iwelf completely subversive of a highly cherished Chiness uange.

Up to 1615 when this case was decided is was apparently the practice to apply the aw of the domicile in the distribution of

Ho Tz Tan's case Chinese assets. cognised a new principle of distribution:

local machinery of distribution,

COLD disabilition.

can withdraw, his share except with the consent of the other members. This is the construction apparently which he puts upon the partnership agreement.

this is so, and it had been pleadeil it might afford a good defence to the claim for payment. By our law of coursò it may be agreed that a partnership shall not be dissolved by the doth of one member Partnership Act 33 (1), and for the law before the Act en Foarte v. Chamberinin

Yew: Sen. 33. But the point has never been pleaded, and furthermore the defun- dant has never objected to a dissolution. in the correspondetes before setien he has actually offered in his only objection was No Chiasso, says to this plaintif as adininistritely of the ́ate. Ross, 'would accept a womin's signa=| estate.

türe in my opinion. He would imme The next point is raised" by parag 8-of Batis diately regard it as fraudulent or forged." the uniended statement of defence,

Mr. Rose adds that if, after the father death, the widow or concubine desires to obtain information ot the chud's property,

i

of the time when Ho Wa Sang was the sole owner of the business, and subsequently, when it becainte a family partnership, the office at Chaten in China was and is the

Mr. Eldon Potter and Mr. F. C. Jenkin but did not I think touch in any way the he would go to the head of the family, and head office. The Wa Ki was not a diffor- }

and

fastructed by Mr. M. W. Lo, appeared for the plaintiff, and the Hon." Mr. E. H. Sharp, K.C., and Mr G. Alabaster: instructed by Mouars. Wilkinson Grist, appeared for the defendant,

The judgment is as follows: The plaintiff who is the administratrix of the entats at Ho Wo Lam deceased

ask for an explanation. She would then

The 'Frobate Ordinancs purports to probe, catitled so know, the precise circum ut firai, but was the name given to the

"vide""&"procedure appicabio to-takes- within the jurisdictions Uur system con stilutem a representative of the estate, with wania persona cometrued eau sazety deal: mcmnery is set up for the collection of assets, the payment of dete, and eventual Persons unit.tima.

Such

worth. stances of the cards share, what is Hongkong branch of the business.

She would not be entitled to get

investments as haye been made have been anything that was not customary. 1 it

effected with the assets of the whole busi had not been the custom to have na anuuat

ROSS."

This para of course speaks for balance sheet, she would not get out if it itself. The Hongkong and Shanghai Bank had not been the custom to have a char which has a hene cities in Hongkong, and Eust 19 tered accountant," she would not be entitled branches in various ports m tue claims, from the defendant at account of Nothing could be more comprehensive than to demand the services of one. She would cited as a partici, casa.

Now what do Wa Ki firm and payment of the amount the terms of sec. 18 of the old Ordinance! not be entitled to nominate an outsider to we know about these firms, and what are

the deceased's share in the business of the

Lound duo. The defendant pleads, among other defences which are not new relied on, first-that upon the death of the de- cused, a domiciled Chinese, his. property passed to, and vested in his widow, one Ho Ng Shi, until, on the adoption of a son in 1902, the property passed to, and vested in that sana. so that there is not, and never has been, any estate of the deceased outstanding Consequently there is nothing vom left to administer.

distribution to the

of administration

_the_materials put at our disposal?" The plaintiff of course can tell us very little. to the books, ansi She has not hari access she has no personal knowledge of the eir" cumstances of the business.

5 or for conferring jurisdiction-of-the-examine the books on her bemalt, unleæ it,

to grant had been the custom. If she were not satis Supreme Court with power

of all fied with the answers given by the hedd Probates or the last wills or any of the inhabitants of the said of the family, she would then appeal in Lology and all other persons who shall the ciders of the clan. They would enquire

The defendant is in a very different pai die and leave personal effects within the into the matter and if they were satisfied said Colony And to commit letters she could do no more. It indeed the child tion. He was from the very beginning of the persons is an adopted child abe has a further ap-intimately associated with his brother, the aforesaid, who shiali die intestate. Take peal, to the natural parents, who would founder of both firms. He came to Hoog Ordinance 1 of 1858. It exempts from the enquire from the elders of the clan. If kong as manager of the Wa Ki in 1863. quitements of the general law as to form, the natural parents express themselves as In 1803 on the death of the second brother The history of this case is shortly a wills of Chinese, wherever domiciled, made satisfied, I do not think," says, Mr. Boss, bo went to Canton as manager & the Pó follows: The deceased died in 1997 leaving according to the custom of China

that any Court in China would listen to

Cheung. In 165 he became a partner. ~hing surviving, a wife, Ho Ng Shi, and a think a fair comment that if a widow or a concubine in such circum. In 1807 he returned to Hongkong which concubine, the present plaintiff, but no Chinese testators are within the general stances. A concubine in China cannot suŭ į has been since then his permanent residence, issue. In 1909 a son was formally adopted law until exempted, Chinese intestates must any member of ber husband's family. If Since 1807 he has been in general charge to him by the family. Subsequently Ho also be within that aw. Ordinance 1 of she went to a Magistrate he would refer g Shi died. In 1918 the present plain 1857 is concerned only with distribution her to the elders of the clau. It is tiff was elected his guardian by the adopt and with nothing else. The old Probate quite unthinkable for an adopted child to son then an infant. Having as such Ordinance 9 of 1879, sec. provides for sue one of the persons who have actually guardian obtained letters of administration. the proof of Chiness law when it is needed adopted him. Et is equally unthinkable Phe commenced this action against the do for administration. This Ordinance that any one should we on his half

ndant the brother, and formerly the ads Ordinance 8 of, 1800, and must be if the person sued paid over Partner, of the deceased.

read with it. Whol so read the intentione concubine so sing, he would certainly The first question is his the defendant is clear. The machinery o of administrabe bold liable by the elders of the clan proved his plea? The only really definite

tion set up by the earlier Ordinance re- to make good the amount. The bay when evidened before me upon this point is that | mains untouched. of Mr Hear This witness does not agree I come next to the Probate Ordinance that the estate ever vested in the widow 1870. The genera jurisdiction of the

of the branches with a salaried manager in Canton Rŋ has been in full charge of

the various and important activities of the Wa K. The oid books of both firins are in existence and Mak and Toag, former accountants and very old servants of the family, are still alive. a share to

Nothing should have been easier than for short and lucid account of the business. the defendant to put before the Court &

be grew up would go to the eiders, and 43, whole. I am sorry to say that he has ask for his share, and, if it had been paid not made the sallest attempt to do any to a concubine, he would complain that he thing of the kind. He has called neither Mak nor Tong, nor has be produced any had been windled, because in China no

On the question whether it has vested in Court in matters of Probate and admin the adopted son, he is not quite so clear.istration is continued by see. 3. By see. one pays big sums of money to family con of the books. Plaintiff, he says, is not But on the whole I think that his opinionestate or property of the deceased cubines. A concubine might in such a entitled to see the books because her claim is that property in China do vest in persons includes property passing on death case re-marry, and she would then take by himself a straightforward witness, honestly to an account is denied. If he had, sinya the son, contingently perhaps and subject Sec. 14 gives power to the Official Admin-whole of the money cut of the family.” to a possible devesting on the happening strator to take poksion of the property So much for the disabilities of a woman,

endeavouring to put the facts before the of some aubsequent event. The son may of any deceased person which may be found especially a concubine, in China. The Court, there would be no point in the bo in the position of presumptive or within the Colony: and to provide for its answer is, I think, that the status of a woman criticism that he is withholding the books, 'qualified" beir under the old English safe custory until probate or administra is different in our law. She is competent as he has do doubt the right to do. But

his evidence is very unsatisfactory. In law." This is how I construe this part of tion has been granted by the Court, Sec. to be administrateix, and as such to do

cron-examination on collateral matters the evidence. Mr. Ross lays alregs on the 18 vests the estate of any intestate, until anything that may be necessary for the

such as the compradore guarantee and the fact that in Chinese las no representation administration be granted, in the Official administration. In dealing with : nasets

exchange transactions be showed up very necessary, and that the person entitled,

Administrator. Sec. 19 confers summary which, are ex hypothesi Hongkong assets takes by direct succession.

Sec. ber status under the law of China is imidly. On the vitally important question at the books and of the outside partners hoj I will sume for the purposes of this Powers in the case of small extates.

21 provides for certain exceptions not material. In dealing with an state in case that by Chinese lay the son has become,

Sec. 31-34 are Hongkong it cannot be material that the bus adolibtedly been guilty or deliberate

fuschood. A to adopt a term of French law, dones of directly material here.

His evidence in chier tends to establish the universality of the succession of his again perfectly general in their terms. Proper tribunal in Chins would be the

ancestor. (8 Vanquelin v. Bouard 13 There is no exception express or implied elders of the clan, or that she must man the esacntial unity of the Po Cheung and

age the property under their direction dur ing the minority of the parson entitled

The place of such tribunalaris taken in this, Colony, by our own Courts. It is clear indeed from Mr. Ross' evidence taken

the Wa Ki Bat much of this evidence breaks down hopelessly in cross-examina- tion when he is confronted with former statements of his own and his witnesses

·་ in other actions. He struck me as a man

any rate benance as a whole to, find that Chinese ou a whole that this plaintiff bocame upon ho had come into Court prepared to tell |

the death of the wife the guardian of the Tako

estate during the minority of the adopted any story he thought calculated to defeat

LJ. C.P 18 What are the legal con-of Chinese. Sec. 60 practically reproduces sequences that How from this position see 9 of Ordinance 9 of 1870. It is, The result, ways counsel for defendant, is think, én implicit recognition of the neces

complete deadlock. The appointment of sity for administration,

How is it possible looking at the Ordi- the administratrix is for technical reasons unassailable-it cannot at questioned in this Coust. But it must be estates are not within its scope! treated as nugatory and of no effect, for again the New Tozritories Ordinance 34 of the simple reason that there is nothing 1910, enactment concorned with a a dis- he might of course be displaced by the plaintiff's claim. I regret to have to outstanding which she administratrix can triet of the Colony inhabited almost en the appropriate tribunal, in caso of inis pass this severe criticism; the defendant management subject to this safeguard is clearly an educated man of some culture tirely by Chinese, Bec. 20 expremly re- dosl

I am referred to Captain Ellips's pro- cognizes the jurisdiction of the Probate he would collect the assets Subject again: from whom I should have expected better

to this general control the care of the thing clamation 1 Kyabe 4 to Ordinance 3 of Court but provides an alternative prese minor and of his estate would be in her I will give a short outline of the origin sec. 6' to Ordinance 1 of 1867 schedule dure. I pause here to sum up my conclu- hands until his majority. She is therefore and history of this partnership. The (2)- and to Ho Taz Iran's case 10 sion on this important gestion: my designated as the appropriate person for family consisted of & brothers whom I shall

• H.K.L.E. 69. - This case is cited for the remarks are confined entirely of course to our Courts to appoint as administratrix refer to for convenience by their numbers doctrine that in Fougtong a dusí system the kcope of the present action. I think in Hongkong. In fact an M. Potter in order of seniority. A business, now exist: Chinees estates fall under Chinese that only that part of Chinese customary points out the was in 1913 tas only person called the Po Cheung, was started in Can

V.

Maw, which is for this purpose the ler loci: law which relates to distribution of assetto whom the grant could have been mal di torby No. 2 in about 1878. He was what

and the crtatcs of non Chinese under the has become the law of the Colony. If this general law of the Colony. Beference was also made to Vanquelin's case 33 LJ.-C.P, 78 Didisheim's case 1900 2 Ch 15: In the Goods of Dost Aly Khan 6 P.D. e.

The persons then, available wore (1) this plaintiff whom Mr. Ron, describes se ti

I might calia theatrical entrepreneur, that is he supplied theatrical companica ko is so the Chinese custom that property on

persons desiring performances. Sonje six months later be started a business” of doath vests directly in a successor has automatic guardian; (2) the present defen another kind in Hongkong, that is to say, application to Hongkong sweets.-- If the dent who was and still is. the managing he began hiring theatres here and pro- matter was over doubtful," the doubt has partner of the very firm of which accounts called Wa Ki. In about 1883 No. 4, the ducing plays. This Hongkong basineEE WEE To sum up shortly: the effect of Mr. been removed by the Probate Ordinhaco are claimed (3) the third brother hormont defendant, who had acted, se asciat It's very able argument is as follows: This part of the defence therefore fans at that time claimed to be stiili, partners to his brother bath it.Cantas and is

I do not propose to deal at length with As to the alleged dangers of

Be manager Mintanecessary to obtain representation

mal admin, ongkong, came to

of the Wa Ki. In 1893 No. 2 died and i no vse of a Chinese estate, as there the case of Vanquelin v. Bouard because istration of the estate by the plaintiff, in 1894 the document described as

* agree ment of family partnership was drawn up. administs outstanding and nothing to I think that if it were held in that the whether sa administratrix or as race, In 1803, no doubt after the death nuility. The grant is therefore a zoore that representation le necessary where I seed only observe that the safeguards No. Look charge in Canton and No. 1 "language of thintiff's answer is that the there are assets in England of a domiciled provided by our law are sufficient to pro in Hongkong In 1897 No, died and came to Elongkong where as I have enough to includebate Ordinance is wide Frenchman-such a decsion was unseces tect the interests of the minor; and that

pointed out he has resi

resided orty since ̈ ̈ In Chinco estates in apoussari, y incjudessary, to the determination of the question this can be effected in a manner consistent

Plainti is the elected machinery provided Colony that the actually before the Court, and may be with Chinese sentiment. One other point

quite Irrespective of thr touching distribution.

Not

12-branch, the Po-Ki,-va- the adopted son of No. 4 Ja

started

and is treated as obiter.

arises on the evidence of Mr. Ross which 1909 No. 3 retired from the partnership There is a subsidiary point arising out I shall deal with very shortl He saya and withdrew' kip shake. of-this question which is raised by para-1 that na mamber

(Continued en page

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