24
such a custom is to be expected in the area.
Succession
If, as is usually the case in the New Territories, succession involves land then, by virtue of the legislation already discussed, prima facie Chinese customary law governs the disposal of the property. It seems probable that the English Rule against Perpetuities does not apply to gifts of land in the territories.138 As has already been observed it is the custom there to dedicate land for ancestral worship, temples and nunneries. Nor did the learned Chief Justice, Sir Leslie Gibson, in 1949 find himself unable to accept that part of Chinese customary law.139
By that law testamentary disposition of property was unknown140 and even now rarely occurs in the New Territories. The legal position is further confused by the existence of the Chinese Wills Validation Ordinance, 1856, (No. 4 of 1856) which declares that Chinese wills or testamentary writings made in the Chinese manner shall be deemed valid. Apparently the only testamentary writing sanctioned by Chinese customary law is to permit one's widow to re-marry and to moralize for one's son's edification. Furthermore, it is probable that the English doctrine of freedom of alienation by will does not apply to such testamentary disposition as may occur in the New Territories but that such disposition must follow the Chinese customary law of succession.141
142
146
all sons of the
Under that law obtaining in the New Territories, deceased whether born of a "kit fat" or "tin fong" wife or by a concubine inherit as tenants in common. Sometimes the father of the eldest grandson receives a double or larger share. No daughter inherits any part of the property. Occasionally the widow or concubine will also inherit a share but usually she only has control over the land in the capacity of a manager or trustee and cannot dispose of the land without the consent of the tso (祖) or family. If there is no son of the deceased then the nearest male relative inherits the property. Should there not be one suitable, a son is adopted to inherit.147
Adoption
The main object of adoption under Chinese custom is to provide a
24
such a custom is to be expected in the area.
Succession
If, as is usually the case in the New Territories, succession involves land then, by virtue of the legislation already discussed, prima facie Chinese customary law governs the disposal of the property. It seems probable that the English Rule against Perpetuities does not apply to gifts of land in the territories." As has already been observed it is the custom there to dedicate land for ancestral worship, temples and nunneries. Nor did the leamed Chief Justice, Sir Leslie Gibson, in 1949 find himself unable to accept that part of Chinese customary law,138
By that law testamentary disposition of property was unknown139 and even now rarely occurs in the New Territories. The legal position is further confused by the existence of the Chinese Wills Validation Ordinance, 1856, (No. 4 of 1856) which declares that Chinese wills or testamentary writings made in the Chinese manner shall be deemed valid. Apparently the only testamentary writing sanctioned by Chinese customary law is to permit one's widow to re-marry and to moralize for one's son's edification. Furthermore, it is probable that the English doctrine of freedom of alienation by will does not apply to such testamentary disposition as may occur in the New Territories but that such disposition must follow the Chinese customary law of succession.141
142
146
all sons of the
Under that law obtaining in the New Territories, deceased whether born of a "kit fat" or "tin fong" wife or by a concubine inherit as tenants in common. Sometimes the father of the eldest grandson receives a double or larger share. No daughter inherits any part of the property. Occasionally the widow or concubine will also inhent a share but usually she only has control over the land in the capacity of a manager or trustee and cannot dispose of the land without the consent of the tso () or family. If there is no son of the deceased then the nearest male relative inherits the property. Should there not be one suitable, a son is adopted to inherit."47
Adoption
The main object of adoption under Chinese custom is to provide a
No comments yet.
Private notes are available after approval.