Page
268
[April 11, 1895.
• THE HONGKONG WEEKLY PRESS AND charge of maintaining the children." Another she was directed to collect could not in the short the Iser was sent to Shanghai, where she loaded case referred to by counsel was that of Ho Chian; time she livel have been nearly sufficient to pay goal for Canton. The fact that she was loading Lau. Ho lai Shi, reported in the Daily Press the interest on loans of the testator remaining at Shanghai came to the knowledge of Carlowitz of 27th Sept. 1889; ou appeal to the Full Court uupaid at his death and to repay his debts.
aud Co. on 10th January, and they protested in Hongkong. There the material terms of the cannot see any intention in the will that the gainst Lee King and Co. so using the vessel, will were as follows: I give all my estate real conenbine Lo Shi was to take an absolute bene-which passed through this port on 15th January and personal whatsoever to my belived wife Hoficial interest. Upon the whole, with every de-on her way to Canton, carrying a cargo of coal sire to give full effect to the testator's inten-which they had contracted to sell to a Chinese tious so far as I can gather them from the will, firm. The coal at Moji, and which the Iser it appears to me the only legitimate construction hould have brought down, was put in lighters I can, in the circumstances, place upon the will and was ready ou the 15th January. It was n is to hold that Kwok Kwai and Lo Shi were con- absolute impossibility for the Iser to be in Moji stituted trusteps of the property to pay interest
on 20th January, but Carlowitz and Co, did not ou loans and to pay the debts, and that, as exercise their right of cancelling the contract, regards the surplus of the property, they wer but chartered another steamer, the Marie, to go. trustees for the next of kin under the statute to Moji and bring down the cargo of coal lying for the distribution of intestate estates. I am,there. therefore of opinion that the appeal should be The Acting Chief Justice-Why didn't they dismissed with costs. It is true the costs in the throw up the charter ? Court below were allowed, quite rightly, out of
Lai hi to be administered by her as she may think best in behalf of herself, my sous (five in number named), and my daughters (five in njim. ber, named)." One of the daughters claimed, as plaintiff, to be beneficially interested and there- fore entitled to an admistration decree. The decision was that "the plaintiff, having established, to the Court's satisfaction, that she has a bue. ficial interest, has a right at present to know what the property was and what has been done with it and the reasons which the defendant may have had for disposing of any part of it, but it will be time enough to say what share she, or any other beneficiary, is entitled to when we find out what there is to be distributed.” The Acting Chief Justics continued in that case as follows: In Raikes v. Ward. 1 Hare 15, Jubber . Jubber! Sim. 503, Crockett v. Crockett, Castobadie 4. Castobadie. 6 Hare 110, and Godfrey v Godfrey, 2 N. R. 16, all dases similar to the present in this respect, that the mother, though meaut to be invested with a cer tain discretion, was declared to be a trustee for herself and children, no specific declaration of the extent of the children's interest was made in the first instance, and I think it will be both just and convenient to follow this practice in the present case. The usual accounts to be taken with liberty to report special circumstances. Having reviewed these cases and returning to the case under consideration, the question aris-g- was there bere any gift of an absolute beneficial interest to Kwok Kwai and Lo Shi? The pro- perty was handed over to them to control the same and collect rents; the precise words were who shall control the same and collect routs," Then clause 2 said the management was to be in the hands of Kwok Kwai alone; while clause 3 was Kwok Kwai shall also, every month, collect and receive rents and look after such matters," and the testator directed the interest in loans to be paid out of the rents and the surplus money to be applied for repayment of debts. The Acting Puise Judge held that the word control did not imply any power of distribution or disposal," and was therefore of opinion that Kwok Kwaiand Lo Shi did not take any absolute interest and that the testator never intended them to do so, Iu the view that no absolute beneficial interest was conferred I concnr. The handing over by a testator of leasehold property to control and col- lect rents and pay debts is, by no means, synony mous with bequeathing it to the absolute us of the person to whom it is bequeathed, or be queathing it to be at the disposal of" such person, or bequeathing it absolutely to any Que with full power to dispose of the same to quote the words of bequest in some of the cases oited. Looking at the whole will I do not believe the testator ever intended to confer the abs late beneficial interest of the property bequeathed, subject to payment of debts, upon the two women named. It may be he intended to constitute Kwok Kwai in some sense beal of the family. Again, the injunc. tion to the persons named in clause of the will to abide by the orders of Kwok Kwai and on no account to distribute the testator's houses and property, the management of which was to be in the hands of Kwok Kwai alone, is certainly not tantamount to giving them any estate or creating any trust in their favour, while it throws some light on the meaning of the ** control?" he meant to be exercised. In vol. 1 of Jarman on Wills. p. 356, dccurs the following pass gle
Conjecture is not permitted to supply what the testator has failed to iudicate, for as the law has provided a definite successor in the absence of disposition it would be unjust to allow the tight of this ascertained object to be superseded by the claim of anyone not pointed out by the fosfator with equal distinctness. The principle of con- struction here referred to bas found expression in the familiar phrase that the heir is not to be disinherited unless by express words or sary implications." The same principle applies to the claims of the next of kiu. They, too, have their claims unless the testator has made some other clear disposition of his property Now, Kwok Kwai died rather more than five months after the testator and less than three months after she obtained probate. The rents
་་
neces-
the estate; for the parties might fairly ask forgiven. He presumed that it' was simply a judicial construction of the will which is per- plexing in its language, The construction
i having been once given, it seems to me that those who are dissatisfied with it must appeal 'at their own risk as regards costs.
The Acting Puisue Judge (Mr. A. G. Wise)
-I concur.
Sth April.
IN APPEAL.
Mr. Francis said there were Do reasons
话 shift in the turn of the vessels. as there Iwas a constant trade in coal. The Maris went to Moji, and loadel the particular cargo of coal, and arrived here on 2nd February But the firm for whom the coal was brought declined to take delivery of it, as the contract time had elapsed, and, the market price of that particular coal had gone down. The Iser left here again on 23rd January, went to Moji, ob- tained another cargo of coal, and got back on 7th February. If sh bad carried out her con fract she could have been here with the first cargo of coal from Moji some time in Jan- nary. Mr. Francis submitted that the Iser, in. consequence of the modifications which were made, was not bound to proceed with all possible peod; she was only bound to This was an appeal by Messrs. Lee King & Cot to Moji on a particular day. He ad against the decision of the late Acting Chicfitted that in going to Shanghai there was Justice. Mr. Francis, Q C. (instructed by Mr. breach of the agreement, and the question was Hastings, from Mr. V. i. Deacon's office), ap. what damags. Carlowitz and Co. were entitled peared for the appellants, and Mr. Robinson in consequence of the breach. He also ad- (instructed by Mr. Gedge, frim Messrs. John son, Stokes and Master's office) represented the respondents.
BEFORE THE FULL COURT.-HON. MR. W. M. GOODMAN (Acting Chief Justice), AND MR. T. SERCOMBE SMITH
(Acting Paisne Judge.)
LEE KING & Co. v. CARLOWITZ & Co.
mitted that they were entitled to interest at the rate of 7 per cent. on money they had spent in the purchase of the coal which was lying idle and auproductive for a certain number of days longer than it ought to have been, and to costs in. keeping the coal on board the lighters from the day on which the Iser ought to have been at Moji to the day when the coal was shipped on board the Mario, and to certain incidental expenses incurred in getting instructions, etc. If their Lor ships should be against him and refer the matter to the Registrar, he asked their Lordships to state specifically which of the two cargoes of coal ought to be considered. His contention was that for the loss on either of these cargoes the plaintiffs were not responsible, because there was no connection between the stipulation in the contract and the breach of the contract and the particular consequences. le admitted they were liable for immediate con- sequences, but not for consequences which were remote. It was not specified in the contract what time the plaintiff's had to be here; only the time she was to be at Moji was specified, the ob. ject of that being to ship the coal from the
lighters.
Mr. Robinson addressed the Court at consider-
able length on behalf of the respondents, and quoted many cases in support of his contentions,
Judgment was reserved.
Mr. Francis said that this was, at the com mencement, a suit by Lea King & Co, against Carlowitz & Co. for $3,240.87 balance of freight due on a charter party dated 19th December, 189 Thero was a counter-claim by Carlowitz & Co. for $1,945.17 damages for breach of one of the stipulations in the charter party. There was a decree in the suit, by consent, for the amount of the original claim, $3,249.87, with interest at 10 per cent, and costs of the suit; and the only amount in dispute was that of loss ou cargo in cousequence of the breach of the contract, and the total was put at $1,571. The dispute was heard before the late acting Chief Justice, who referred the claim for damages to the Registrar. From the Registrar's decision Lee King and Co. appealed to MF. Ackroyd and Mr. Wise, whohard the appeal, bat Mr. Ackroyd was unable to de- liver indgment before leaving the colony. The case therefore came before the Court now to be re-argued. The charter party was made on December 19th, 1893, and was in respect of the s'eamship Iser. Carlowitz and Co. chartered this steamer to proceed with all possible speed to Moji after completion of the voyage on which she was at the time engaged. She had the liberty to go to Moji vic Kobe and Nagasaki, provided the detenti n on the way did not exceed three days. and she was to arrive at Moji not later than 20th January Tho Iser was chartered to carry a cargo of coal, and Car- lowitz and Co had the option of cancelling the charter party if the vessel did not arrive within the stated tine The Iser arrived in Hongkong | from her previous voyage at the end of Decem- ber, and as the result of correspondence between the parties some modifications were made in the charter party. Mr. Andrew, who represented the plaintiffs was anxious to get the vessel un- loaded as speedily as possible and despatched from this port before the end of December.
suited the convenience of Carlowitz England is warned by the Tokyo Mosaichi It aud (0. lat the vessel should not that unless she evinces more sympathy for Japan
in Moji before arrive
11th January, she will be surpassed by France as the more in- so that there was a modification to this extent, Huential Power in the Orient. Superior diplo that instead of being bound to proceed with all macy. says the writer. gaiued England the possible speed to Moji after the termination of advantage at the Restoration, but the balance is her voyage she was not required and in fact now rapidly turning. The Japaese nation is undertook not to get there before 11th Jan- very ready to welcome France as their best friend nary; but she was to do her best to get there on at this time; and England should seek to realise 15th January and not later than the 20th Jan- the changes that are transpiring The Oriont uary. Of course the option of cancelling the con- of the future, it concludes, will be quite different tract still remained. By an error of judgment from the Orient of the past.
STOPPAGE OF NIGHT TRAFFIC ON THE CANTON RIVER,
In consequence of the laying down of addi- tional mines and torpedoes in the Cantou river, as a precaution against a Japanese attack, night traffic on the river has been suspended. The official notification is dated the 8th inst.
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