1927-09-06 — Page 12

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THE HONGKONG TELEGRAPH,

CHINESE CUSTOM.

SUPREME COURT JUDGMENT.

TUESDAY, SEPTEMBER

cepted for them the social status of husband and wife.

Evidence Disbelieved. As to the evidence given by Giving judgment in the Supreme a man named Loi Lung, that in a a co-habita-. Court yesterday afternoon, in previous case such connexion with the action which tion, which had been cited as a arose over the estate of a Chinese, precedent, had resulted in Ngal I, late of No. 5 Tsat Taz Mui expulsion of the man who village, Hongkong, and which in-offended against a village custom,

I do not believe it. volved questions of law and cus- Whatever the legal effect of a

tom, the acting Chief Justice, Mr.

the had

J. R. Wood, confirmed his provi-Chinese Code under the legal sys- sional judgment, which he stated tem applicable to these proceed- as the conclusion of the case, nings may have been or may be like- ly to have been, it seems certain short while ago.

that these two persons were pur- porting to contract a marriage of the type referred to in the case cited in the court, of Kin Lung.

The judgment. is as follows: In this case the facts are clear This is the estate of Ngai I, who died at Taat Taz Mui on 23rd February, 1900, and left one son, Ngai Po Tse, who was the hus band of the first plaintiff, Ngai Chung-sz, on this issue. The son died on 20th September, 1903, without issue. Since his death his widow continued to reside in his house, until that house was demolished. No formal steps were taken in connexion with the estate of Ngai I, deccased, until the demolition of the house came along the question of receiving the compensation for this house had to be faced.

on

own name and as

If I am right then, the defen- dant has failed to establish the contention that the first plaintiff has left her first husband's family by marriage.

WIS

To come to the second point, the first plaintif has either been' living in a rointion, which legal as married under former Chinese legal system, or she has been co-habiting, though with the consent of her neighbours, in an illegal relation with a man. Dr. Lai has stated that if this had happened without the consent of her family, in China in a Chi- nese village, public opinion would. have imposed 4 death penalty that reason I upon her. For doubt whether the Chinese system ever faced the problem as to what became of the property held by the widow in circumstances of her survival, and on her being allow- ed to co-habit illicitly with an-

other man.

The first formal step taken was an application by the defendant was the this issue, who younger sister of the son, Ngni Po-tae, and she applied for and obtained Lettera of Administra. tion to the estate of Ngai I, de, ceased, on the 3rd August, 1926, and she is at present the adminis-

No authority has been cited to tratix of that estate. The pre-

me to show that by statute im sent proceedings are brought by morality deprived the widow

of the widow of Ngal Po-tse, in her the property. Therefore, even if

next friend

the defendant here were able to for a boy whom she has adopted establish an immoral relation, and as a son of her deceased husband. I am not prepared to state that The questions raised in the is-she has done so, the proof of that sue are (1) who were the per- fact does not seem to me to form sons entitled, according to Chinese a basis for the contention that law and custom, to the estate the woman has here lost any of the deceased at the time of his rights in the property of her late death. I think we are agreed that husband, seeing that she has there is only one answer to that shown no intention of separating question and the person entitled herself from her first husband's at that date was the son, and no family. oné else.

Rules Of Adoption.

The second question is who are

As to the question of adoption, the persons now entitled to the estate of Ngai I deceased. It I accept Dr. Lal's evidence on the question of age and I am prepar- will be agreed that any personed to hold that where adoption is entitled must derive title through Ngai Fo Tac.

At the time of Ngai. Fo-tse's death there can be no doubt but Ngai Fo-tse's widow, the present first plaintiff. Whether she is now, ontitled or not depends on various considerations of Chi- nese law and custom.

Onus on Defendent.

I take it, it is not for the plain- tiff to show that the has remain ed in the family. It is for the defendant, who sets up the case that she has left the family, to prove that she has in fact left the family.

It having been once establish- ed that the first plaintiff was at one time entitled to this property, it is for the defendant to show that she is no longer extitled to it.

necessary in order to prevent the extinction of a family, auch 'adop tion may be made by the person entitled to adopt, of any male, whatever his surname, if he be suitable, and that such" person will thereby become the represen- tative of that family by right, of nomination and not by right of blood, and that he will be entitled in due course to the family property provided he undertakes the performance of the family religious rights.

The widow of a man who has died without issue will be the person entitled, where there is no male surviving member of a Chin- ese to make the adoption, so long as, she remains in the family of her deceased husband.

In this case the first plaintiff appears to have made the adop- tion and to have made it rightly. I find no reason to declare the There are two ways, according to the evidence, by which the adoption of the second plaintiff invalid. The answer therefore to first plaintif may have become

the second question will be that disentitled, (1) by contracting a re-marriage, involving a migra to Chinese law and custom, to the the person now entitled according tion to another family, which is valid is accordance with Chinese first plaintiff, who will hold it estate of Ngai I, deceased, is the

law and custom, and a re-mar- subject to her usual right of rlage which was undertaken prior maintenance from it, in trust for to any adoption; and (2) by what the son that she had adopted, who Dr. Lai has described as an adul-will continue her first husband's terous relation with a man. Such family. a relation is not, under English law, regarded as adulterous, but of the Chinese law applicable to I accept as a correct statement has been so described under Chi; these proceedings, the view expres nese law by Dr. Lal. The defened by Dr. Lai, that in the event dant has set up the marriage and of a family becoming extinct, the has alleged that the first plaintiff Chinese Code provided that a fe- re-married properly and left her male relative of the last deceased first husband's family in conse-male representative would then be entitled to inherit his property

Steamer..

CANTON...

.Fooshing Tues. 6th Sept at 1a.m. TIENTSIN Swatow & 'liai Chipshing Tuos. 6th Sept at 10 am TSINGTAU Swatow & S'hai Chakrang Wed. 7th Sept at 10 am. GANTON

Yusang Wed. 7th Sept at 2 a.m. Kwaieang Wed. 7th Sept at 2 a.m. Yueneang Thurs. 8th Sept at 10 a.m. STRAITS & Calcutta Kutsang Satur. 10th Sept at 3 p.m. SANDAKAN

Hinsang Satur, 10th Sept at 3 p.m. TSINGTAU Swatow & S'hai Kwaisang Sun. 11th Sept at 10 a.m. CESAKA Amoy, Moji & Kobe Luisang Tues. 13th Sopt at 7 a.m.quence. STRAITS & Calcutta... Namsang Tues. 13th Sept at 3 p.m. There is no doubt that there though she had herself left her TSINGTAU Bwatow & S'hai Kwongsang Wed 14th Sept at 10 am.

W28 no ceremonial re-marriage. original family by marriage. TBINGTAU Swatow & S'hai Hangsang Sun. 18th Sept at 10 a.m. It does not help the defendant's Such a right was not confirmed OSAKA Amoy, S'aai, Yokohama, Hosang Fri 23 Sept at 7 a.m. position that there was no family to the daughters of the deceased, to give a consent or to make ar- bat was extended to his sisters or Maji & Kobo

rangements for such 1 re other feminine relatives. marriage by the first plaintiff. In these proceedings, if the de- The absence of a family at that fendant had successfully esta- point does not go to establish the blished that her brother's family fact of marriage according to had become extinct, she would Dr. Lai's evidence, It goes to have shown that she herself was establish the fact of immorality, now entitled to his property. Sec- It seems clear from the records tion 88 of the Tai Tying Lut Lai of the Tai Tsing Lut contains the provisions of the Lai that it is not incon Code on this subject. reivable in the Chinese legal I adopt as correct the transla- system that a man should be intro- tion furnished by the court trans- duced into a family as a husband lator which agreed with the ver for a widow and that such a union sion appearing in "Jamieson's would count as a marriage with Chinese Family and Commercial out severing the widow from her Law," on p.17, and am unable to firat husband's family.

accept the translation suggested

:

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It seems also to have been in the witness box by Dr. Teo, un- clearly proved that in this parti- der which daughters alone of the cular case the neighbourhood of last deceased male representative That Teo Mui village have for were stated to be eligible to in- several years tolerated the co-herit

habitation of those two persons Costs for both parties to be paid in the house, originally occupied out of the estate at the figures by the first plaintiff's husband, agreed upon between them. And not only that they have to- Mr. C. G. Alabaster, K.C. fa- lerated it but that, us appears structed by Mr. Horace Lp was for from the evidence of the Elder the plaintiff, the defence being. who attended and gave evidence conducted by Mr. F. C. Jenkin, for the plaintiffs, they have ac- instructed by Mr. E. 8. C, Brookon.

1927.

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