1924-07-16 — Page 5

Page

LOCAL WILL DISPUTE...

PORTUGUESE FAMILY AT LAW. CHILDREN'S CLAIM TO SHARE

the

FATHER'S ESTATE.

THE · HONGKONG · DAILY PRESS, WEDNESDAY, JULY FITH, 1994

"

The second defendant wa a boy and Later Mr. Alabaster again asked if wie evidence would establish that the deness know Silva and she replied I have ceased was equally affectionate towards never been introduced to him.

Cross-examined as to her conversations him. The son obtained employment in Messrs. Shewan, Toraes & Co., probably with her father, witness was asked what due to his father's influence. In 1919, was her father's reply when she asked the sun, went to Manila because he ob him if he would return home. tained a better position, and he took with him his younger sister and his mother, He visited, Hongkong on three

Was anyone living with you in Hong. ecensions, and on these occasions he kong before scar mother went to Manila? visited his father. They had lunch to--No one, except my spother, sister and

An interesting will case was opened in Supreme Court yesterday before the neting Chief Justice (Mr. H. 11. J. Gompertz), sitting in Probate jurisdie tion. The case was one in which Rosa de Lima Gutierrez, of the Astor House Hotel, as "plaintiff, claimed probate of gether: in fact all the members of the the will of the late Francisco Maria family were thers excepting, of course, Gutierrez, Inte of No. 3. Mosque Street, formerly a broker in Hongkong. under which will she was appointed exccutrix. The defendants in the case are the ceased's three surviving children. Ataris Failia Gutierrez, Francise Maria Cutier rez and Cecilia Maria Gutierrez, whose address is stated to her No. 1, Saifee Terrace, Kowloon..."

The deceased died on April 29th, 1985, and the will by which the plaintiff was appointed executrix was plated, Janaury Soth, me. On June with, two months after the deceased's death, the three de fendants, lay cans of a caveiti, stopped the granting of probate in Court.

The Hon. Mr. C. t. Alabaster, K., instructed by Blessrs. Bencone, appeared on behalf of the "planinsiff, and Mr. Eldọn Potter. £.6%, instructed by Mr. G. K. Hall Brutton, represented the three de

fendants.

was granted

in Paster claimed the right to open the case for the defour first, and this

Comsel said the plaintiff in this ende claimed that she was the sole execu trix of the will of the late Mr. Francisco Bluria Gutierez and asked that probate be granted to her. The defendants, on the other hand, who were the three children of the deceased, state that the will was abiained by abdue influence secondly that the "ideerased was induced Lo make the will on terus of trust, and thirdly that she induced the deceased not to revoke the will for the same reason. The wil with which they were concerned was rited Janitary wa, un which left the whole of the property to the plain- tiff, whereas he quugender-and this

would be borne out by yvidace which would leave no shadow "of doubt that the testator's real intention was that the plaintiff should enjoy the property for El periudher life and that it would go to the defendants after her death, the drunased's children to be divided into equal shares,

The evidense will show," continued Comasel, that "the 'dergased.

2

of no strength of character and is an cafecided state of health, was entirely domineered by the plontiff. We Shath prove that her intuence was so great. that he was not a free agent; in a word, the mind of the plaintiff was that of the deceased, **

WOL

the plaintiff.

Witness said her father replied: Ne

home is here.

brother.

Did Mr. Silva, come to your house at

COURTS MARTIAL.“

SCENES" AT AUSTIN BARRACKS.

Resulting from the "same" incidents on the night of June 28th-29th two District Courts Martial were held at Murray Bar- Fracks yesterday.

Ti, the morning,, Pte. George Barnes, of the 1st Battalion. the East Surrey Regiment, pleaded not guilty to charges of being drunk, attempting to strike a Superior officer, and resisting an escort

at Mount Austin Barracks. allef Mr. Silva had come to our house of the Court Martial. Lieut. A. E 3ajor A. L. Cruikshank, was President

1

I would have known him, At the time the deceased died the first

Witness, in answer to further questions, defendant was called to the bedside ananil that it was in icon that her father found a number of people, praying round asked her to come and live with him, the bed. After the prayers the father was She refused because of the reason that told that his daughter was there and he the plaintiff was there. She did not after said:Emilia, ay "darling child. why that go to the house until a few days didn't you conte Løfore?)

before her father's death. After leaving | Messrs. Shewan, Tomes her father be came a broker, and as he had no office witness End, not the same opportunity of seeing him.

Ceungel went on to say that he would call a bumber of witnesses who won depose to a number of facts, the only inference from which way, that the de- ceased was dominated by the plaintiff. His meetings with his children were clandestine to the extent that he kept the "secret from plaintiff. The father when he attended the christening of the first, defendant's second child requested that the ceremony should he held during the in hop-not a very convenient hour-the reason he gave being that he desired to attend without the plaintiff

knowing.

.10

as to Her father telling her that he it

"Examined as to her evidence in chief

tended leaving The Bird Cage to her witness said this conversation took place the Court was perfectly true. in October, 1923, and what she had told At that tine her father had let the Bini, Cage and had arranged to go and live at No. 3, Mosque Street, tie was unable to go there owing to the Leuant's refusing to leave, so he and the plaintiff went to live at No. 9, Mosque Street, where they

r་

Mr. Alabaster: You are not-suggest-

no will of his owa?

Ilis Lordship: Do you say that he had -Witness: No, he had no will of his own because I asked once if he would stay for tilin and he said no he could not on any account.

first defendant's house. This was on n

Early in 199, the deceased visited the shared one room. Sunday and they requested him to staying that because she objected to living the afternoon. le replied that he could in one room that she had a domineering not for four of incurring the plaintiff's way with him? he would describe as the telephone in, displeasure. Another incident was what cident. The deceased and bis brother" decided that it would be good to have a private telephone installed and meet ing their houses. Instructions were given and the work was begun Set the plaintiff intervened and stopped it and refused to let it go on. The brother to take the deceased out, but the plain that told him he was not well enough to go out and eventually leeked up all the entrance into the house and could not decense:l's clothes. Visitors had not free get in without giving their names and business and often not then. Both gates wing to the house were kept locked, and the plaintiff had the key of them.

His, Loniship: Quite a fortress. Mr. Potter: Exactly.

once went

THE TESTATOR'S BROTHER'S EVIDENCE, Mr. G. L. Gutierrez, a clerk at the

WHA

Cotton presented.

Sergeant G. D. Oliver said that on the jaight of June 28th, he was Culerly Ser geant of "A" Co. at Austin Barracks, He called the roll at 9 am, and at tattoo. The accused was absent on each occasion. A: 7.15 p.m. witness arranged to be informed of Pta." Barnes' arrival, and at 115 am. he received a report from Compl Doubtfire" that the accused had arrived drunk on the last Peak trem, gal Lad not answered his name in the guardi. run.

Witness, in company with Compt. Doult fire and Pte. Anderson (Military Police), went to one of the barrack-roots where a light was shining. On the verandah, witness sad someone

coming towards them, and called out asking whh it won The figure replied Barnes,

Witness gave orders for him tar he placed under close arrest, wher and shouted "That's sour

gume, is it ( and raised his right hand in an attempt to strike the witness,

accused shouted "All All and some

On the escort closing with him, the one started to run towards them. The accused struggled, kicked, and used ob- scene language. He was evenceki place in the guard-room, when he turned round and, addressing the witness, said I give you credit You're fly. You struck me once. No one ever struck nie twice. Remember that, mush.' He d this to the companiment of very bad language.

latter was druck because he was swaying: out on the verandah, and because of his excitable manner.

LCpl. Doubtfire corroborated the Ser- Kent's evidence as to the incidents at

Hongkong and Shanghai Bank, of the accused. He could see that the Sgg. Oliver denied that he took bold that He saw the deceased (his bro

every day 9. he ther) nearly will. He always visited the house where co-testator with him of his father's

the plaintiff and his brother were living and did so regularly with the exception of a period of about two months when he kept away. The plaintiff was always present when he was there except on Sundays when she went to late Mas

Mr. Petter: Were you able to see your brother alone or was the plaintiff always there 1--She was always there,

la red to his Lordship, Counsel said the deceased died in Must Street, but previously had lived at The Bird Cage"

Conduit Road. He would prove that Witress was then asked if he ever the deceased repeatedly stated that it was wanted to see his brother alone. The his intention to give his property to the question was, repeated several times both plaintiff during her life, and after her by Counsel and by the Chief Justice, but death it was to go to her children. He as the witness did not grasp the ques- me this statement to witnesses who tion it was decided to leave the question had no interest in the ense He also over until such time as a Portuguese made this statement to the prest who interpreter could he brought to Court. attended him and administered the last rites of the Roman Catholic Church.

Counsel then réud a document to the Court which was made by the deceased a few days before his death. This was as

Foilures:

I have bought 500 shares of the Ching Light Company, the payment of which has not yet been made. It is my will that the shares, for the payment of which I give cheque to the Rev. Father Bianchi, be handed to my cousin Hos Gutierrez, so I leave to the said

Gutierrez Rosa

the investment of Ba141.99 due to me after the sale of e my property Burcka and also the kind with the house 'The Bird Cage

the Barracks,

The accused, in cross-examination, asked why, if he was drank, he was not created as a dranken person.

Witness replied that his struggles were so violent that the escort had to put him in the guard-rooar as he was

Witness ran

Pte. Low was called by the accused to his behalf. Witness give evidence

at the tent sight to the roug to barracks went straight to the room Barnes went where the former slept, out, and soon after the witness beard hin shouting "A! Help!" out, and saw Barnes leing dragged dowr stairs by Corp. Doultre and Pte. An derson, who were doing their best to keep him on the ground. Witness told them to let him get up. The guard was turned out, and Corp. Sherwood suggested to witness that he should go quintly. Wit ness said he would go quietly if they would stop knocking Barnes shout. I

witness alleged. Set: the guard-room, Oliver tried to get Barnes to strike him.

The accused made a statement to the effect that he saw only Sergt. Oliver on the verandah. Being seized from behind, he could not possibly strike him, or at

He was dragged, down- tempt to do so. stairs, he said, face downwards.

THE TELEPHONE, INCIDENT. Witness was then asked to describe the telephone incident. He said that his brother and be agreed to install a private telephone connecting their two houses The workmen came to his house and pro- ceeded with the job. They then asked witness to take thein to his brother's house in Conduit Road to get on with the work there. He went with them and his brother opened the gate and let theni in. The workmen were taken on to the the line. verandah and there fixed up The question of where the telephone should be installed was then discussed. His brother suggested the bathroom The accused, being found guilty of whilst witness suggested the 'corridor, drunkenness and resisting, an escort, and

which I have already disposed of in myddenly plaintiff appeared on the scene not guilty of attempting to strike Hergt.

and asked what the telephone was doing there. Witness explained and she said: "I don't want to have communication with you or your brothers, and will not have anything to do with them." She then scolded the workmen and turned them out. In the garden witness told his brother" This is your house; you are, the owner of it. Are you going to put up with that." He replied: "You sec 1 nm sick and she might give me a blow and put me on the floor. Witness point. ed out, to him that she was not his wile and referred to the fact that he was a married man and if he wanted anything in his house he would just say to his wife that be was going to bave it. Take y advice and turn her out.

Oliver, addressed the President, saying that since he enlisted, all his officers had told him that he was no good to any body. He had frequently applied for his discharge but had been refused. If he was no good to the Army, why did they not let him go

Sentence on the accused will be pro- uulgated in due course.

In the afternoon, another District Court Martial was held, in which Pte.. Low was charged with iwing drunk" offer- ing violence, and resisting an escort on the same occasion. The accused found not guilty on all the charges.

Was

This is not the ordinary kind of ens which a father disinherits, bis child ren, for I shall prove that the father was un most affectionate terms with them. at that, time after sime, he said the will" the children should have his property

(gd) F. M. GUTIERREZ Witness: A. Bianchi, R.C. Priest. after the plaintiff's death. The drccused

Concluding his address, Mr. Potter sub a married man with fee children. initted that the will was made under three of whom survived, and hese three plaintiff's domination. It was signed he are the three defendants.. Te first deenuse plaintiff agreed that she should have the property during her life and that fendant was his daughter, aged 3 years;t should then go to the children. She the "sevand "defendant was his san, aged agreed to that trust but had since re-

fused to performs it. 30 years; and the third defendant was his daughter, #pod, 24 years.”

EVIDENCE FOR THE DEFENCY. Continuing Counsel said that in the

Evidence was then given by Mrs. Maria year 1901 this deceased apparently became. estranged from his wife and he left there, the eccused's eldest daugh- house in which he was living with hister, who spoke in detail of the incidents wife. He went to another house whers rationed by Mr. Potter.

Referring to her brother, witness said he lived with the plaintiff to be quite netrate he first of all lived next door the deceased enquired frequently about

His Lordship: You didn't say this in Witness asked him if he was ready to to the plaintiff and later they lived him and met him when he passed through

proceed to Kowloon and he commenced Logether. Whatever, were the feelings Hongkong. When her brother's son was the presence of the lady?

#christened he even expressed surprise Witness then went on to say that his putting on his socks. Plaintifi, who was between husband and wife the feelings

present, said, "You can't go. You will of the father to children were of the that the son had not been given his brother used to come to his house

not $9. You are not well enough to go." grandfather's full name, pointing out that Sundays and have a bath. On some of most affectionate nature. There was no estangement so far as the children were there, would have been three generations these decisions the plaintiff used to conse The plaintiff then scized bis clothes and deceased went to the door and shout for his brother, throw them into the wardrel,e and locked concerned. The children at this time with the ante name The

on board th vessel to see his son off, They used to. try and, persuade him to the door. Witness suggested that be were aged 9, 7 and 3 years respectively.

The first defendant had resided in and after his return to Manila the de- stay, but he used to say: "Now let me should break open the wardrobe door, but his brother replied "I am sick and Hongkong from the time of her birth up cased showed witness a photograph he go, otherwise I will get into trouble.""

Sometime before his death the decensed she might give me a blow" When wit. 10 the present day. The second and third had received from him. When her sister. defendants went to Manila in 1919. Re and mother visited Hongkong and stayed used to come and borrow money from ness went down stairs he found the main Karding the first defendant, she would with her the deceased did not come to him. He would ask for ricksha money door of the house locked and he shouted pruve that after her father had left the her house owing to the mother being and sometimes he would ask for a $1 or out "If you don't open the door I will

$2 to buy food. He always lent it to him. break it down.” mother, she continued to go to her

WHO 13 BILYA?

Finally witness told him that as he A few days before his brother's death, inther's new house for the purpose of

Cross-examined by Mr. Alabaster, wit (deceased) had money in the bank, why witness received a telephone message at practising the piano until the plaintiff Cr Mt tracers) in we take

there fans

defendant went to her father's house in

His brother replied that if he went home book to he sent up to his bouse. He with money in his pocket the plaintiff took his pass book, his cheque book, and the evenings after he had got house from

would take it from him. Later it was paying-in book to the house, and had a business,

agrecil that the deceased should draw a talk with his brother, who did not men eheque for $10 and of this amount he tion a word about them. Plaintiff," after took $2. witness keeping the remainder half an hour's conversation, came behind for him for use on future occasions.

there.

mother, brother and sister stayed with in Manila.

You know"perfectly well where they stayed No, I do not

Where is your mother now-In Manila Have you ever heard of anyone by the name of Silva-1 don't know.

Did your mother go away with, a man named Silva in the same sense as used in your father's cabe 1-No,

In March 1002 the father placed the first defendant in the Italian Convent and maintained her there, and visited her every Sunday afternoon. She remained thero until 2000. When she left the father requested ber to come and live with him and the plaintiff, but this she could not

Way it on account of this man Silva do. He would prove that this did not make the slightest difference in the feel that your mother went away?-No.

Have you ever beard that your mother ings of father to child. She went to live.

was living with Silvat-I never beard with her aunt, and she was there visited by her father and received pocket money

Witness added: I do not know this from him. In 1910 the first defendant was married she did not change her man Silva personally, but I do know of name when she married. Later, the him. father attended the christening of one Did he ever come up from Manila - of her children. She was also present it don't know.. her father's bedside at the time of his Did he come up with your mother?-No,

not that I was aware.

leath.

that.

42

ANOTHER INCIDENT,

the deceased and said: "Ask for your bank book. His brother did so, and he handed them over and his brother in Continuing, the witness said between turn passed them over to plaintiff saying: February and March of last year he "Keep it." wizbed to buy a piece of land in Kow- Mr. Potter: Was your brother in a loud from Father Novelle. Knowing that position to do or act as he liked when his brother knew the Rev. Father he he was with the plaintif?-No, supposing asked him to go along with him. They for instanco my brother wanted to put agreed that they should go on Saturday that book (pointing to a volume on Coun afternoon. He went to the house to call sel's table) on the corner of the table for deceased, but the plaintiff told him he could not do so without her consent

Mr. Loureirio, the interpreter, was then he was sick in bed. Ile then heard his brother shout "Come up." He went up called, and after interpreting a number stairs and his brother sitting in Bed of questions and answere for the Court,

(Continued on nezi column.) the case was adjourned until to-day.”

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