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THE HONGKONG WEEKLY PRESS AND
Yuon shop. At the date of the execution of of the release the plaintiffs were under the age 21 years. They prayed that the release be set aside, that an account be taken of the estate and of the dealings and transactions by the defendant with or without refereuce to the said estate, and that the defendaut be cid red to pay the plaintiffs such sum, together with com- pound interest at the rate of 8 per cent. per annum, as on the taking-of the acconst might be found to be dua from the defendant to the plaintiffs.
what an English lawyer reading the will would assume he meant. When we have ascertained what he meant, then we must apply the law of Hongkong to give effect to that intention, 80 far as so doing would not contravene the require ments of Hongkong law. I decide, therefore, that, in this case, both parties aro at liberty to give me the evidence of experts in tha Portugue e law in force in Macao, as to the meaning, according to that law, of the particu- lar passage in the will. When that evidence is before me, I shall be iu a better position to know what the testator meant by the words in In his answers defendant denied that the question than I am at present. I desire to estate included cargo-bo-ts or jewelry except add that, in this case, there is a special a gold watch, or was of the value of $40,000. circumstance
makes which
me deem it He had rendered to the plaintiffs frequent and right to admit the evidence of Portuguese proper accounts of his executorship. From the lawyers. It is this, Ou looking at the time he became exe utor until the division of petition for probate I find that a year and the estate he devoted the whole of the income half before the testator made is present will,, arising from the estate to the support and he made another which this will revoked. Inducation of the plaintiffs; and as the income the revoked will occurs the following passage:- was insufficient for that purpose he supple- I finally declare that it is my intimate wish mented it from his own money to the amount and last will that this my testament and every-† of $6,571. When the citate was divided and thing therein coutained relating to my goods the release executed, the defendant gave the existing in this Colony of Hongkong be ad- plaintiffs a full and complete account of the ministered, fulfilled and interpreted according executorship and the plaintiffs signed their to the laws in force in the Colony of Hongkong, approval. and by no means by the Portuguese laws Ber by those in force in Macao, or in any o her country." In the present will, however, made in Macao, this clause is entirely omitted; from which it may possibly be inferred that he hid altered his mind, unless indeed he thought the clause unnecessary. It shows at least that he know that questions as to conflict of laws.might possibly arise in dealing with the Hongkong property.
46
The Court adjourned.
Wednesday, 10th September.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR W. MEIGH GOODMAN (CHIEF JUSTICE).
PAU LEUNG AND OTHERS . PAU KWCK CHIU.
This was
a petition for administration of the plaintiffs' father's es ate by the Court and for account of excutorship to be taken. Mr. M. W. Slade, barrister-at-law (instructed by Mr. F. X. d'Almada e Castro, slicitor), ap- peared for the plaintiffs; and Mr. T. Morgan Phillips, barrister-at-law (instructed by Mr. J S. Harston of Messrs. Ewen and Harston, solicitors), appeared for the defendant, in the absence through indisposition of Mr. E. H. Sharp, K.C.
In the petition it was stated that the plaintiffs were the three sons of Pau A Yai who by his will of 1876 bequeathed his property to the defendant in trust to be divided in equal shares amongst his sons on their attaining 18 years of age, and appointed defendant as executor. The defendant thereby obtained possession of property in Hougkong, being the estate of the testator, of over $4,000 in value, though the defendant in his application for probate of the will swore the value of the estate to be under $6,00. The property consisted of two parcels of laud, Inland Lots Nos. 239 and 28", the Kwong Yuen compradore shop in Jubilee Street, of which the testator was the sole owner, and other property, including shares in shops, cargo-boats, money, jewelry and personal effects. He had refused to give the plaintiffs any proper accounts of his dealings with the said property and had wilfully and fraudulently
re-
concealed from them the true amount and ralue of the property left to them by the testator and had lost by negligence or by unauthorised and improper investments or had converted to his own use the larger portion of the property. Out of the property, with the exception of a small allowance prior to the plaintiffs granting defendant a release from all claims with ference to the estate, the plaintiffs had re- than ceived from the defendant no more Inland Lot No. 239, which was sold for $4,700. On 15th April, 1893, the defen- dant, without disclosing to the plaintiffs the true value of the testator's property or his dealings therewith, fraudulently induced the plaintiffs to execute a release to him from all claims, accounts or demands concerning the estate. He stated that the only property was Inland Lot No. 239 and one-half of the Kwong
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Mr. Slade said that so far from the defend- ant being an honourable and upright man who had out of his own pocket paid large sums of money for the support of the leueficiaries- left in bis charge, he had systematically robbed them of very large sums of money and had taken advantage if the position in which he was placed by the testator, to fil Lis own pockets at the expense of these children.
Mr. Morgan Phillips, interposing, said he might le able to shorten the proceedings. He admitted that it might be necessary that these accounts should be taken. The release was given by the plaintiffs in 1893. He did not rely upon that as a valid document. It was undoubtedly prepared in accordance with the testator's will, but it appeared the Leneficiaries were under age at the time they signed it. the statement of defence the defendant stated that he had on several occasions rendered accounts to the plaintiffs. He agreed on the defendant's behalf that the accounts should be taken before the Registrar with the provi-o that the question of costs should be reserved.
In
Bis Lordship agreed that by that means the Court would be in a better position to judge what the dealings and money transactions really were. The question of costs would of course be deferred.
That was a
Mr. Slado said he wanted enquiries made as to whether the varicus prices of the testator's businesses sold by the defendant were fair prices. When the testator died he was the owner of a very flourishing contracting business and two bakeries. 'e bad at the time of his death the contract for the supply of provisions to Victoria Gaol a very valuable contract. yearly contract, running from November to November. As soon as the testator died, defend- ant got that contract cancelled and took a new contract in his own name, and continued to be the contractor from 1876 till 1892, appropriating probably the most valuable portions of the testator's business to himself. Of the profits made by him as contractor for the Gaol, he had not accounted for a single cash. Then be started a business, that he called his own, inside the Kwong Yuen sop, with the manager of the testator's shop to manage his business; and by his carrying on the same class of business he appropriated to himself practically the whole of the profits of the testator's shop. He sold one bakery for $150, made no reference to another bakery also owned by the testator, end minimised the number of shares which the testator held in other shops. He was going to show that this man actually sppro- priated a rast amount of this estate to his own use and to ask his Lordship to make him account for the annual rents. The authorities were that when an executor and trustee appro- priated trust money, used it for his own purposes and male profits ont of it for himself he had to account for these profits with the interest which they would have earned if he had dealt with them properly.
Mr. Morgan Phillips contended that his client was only presumed to te in default. The accounts should be taken in the ordinary way.
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[September 13, 1902.
Mr. Slade went on to say that there was not a single cash received by the Kwong Yuen shop accounted for. Then the defendant sold haf of this flourishing business for $700 to the manager of th shop. It was the most out rageous pretended sale he had ever heard of. It was a valuable business, yet he gave away half of it for next door to nothing.
His Lordsbip suggested that the case might be adjourned for a little time in order to allow the parties to determine, if possible, what form of decree they would like him to make as regarded the special enquiries to be If they could not made into the accounts, agree upon that, evidence wou d to taken if
necessary.
Mr. Morgan Fhillips said he could not admit that his client was a fraudulent or a defaulting executor; be absolutely could not agree to the accounts being taken on that basis.
His Lordship stated that the question whether he was a defaulter or not would be proved by the accounts that he produced of these transactions.
After an adjournment for twenty minutes, the Court resumed at twelve noon.
Mr. Slade said that of the acconuts he re- quired, the first was the accounts of the Kwong Yuen down to the present time. Secondly he required the accounts of the Kwong Kee, the business which the defendant carried on inside the Kwong Yuen. Thirdly, he required the profits of the Gaol contract.
Mr. Morgan Phillips was quite prepared to agree that enquiry should be held as to what the estate of the testator consisted of; these were the ordinary accounts and the accounts of the dealings of the executor with these properties.
His Lordship remarked that the first enquiry wold raise the question whether the testator bad the full share or only half a share in the shop.
Mr. Slade proceeded to put in the Gaol con- tracts from 1875. In the first contracts the defendant was described simply as Pau Chiu, contractor, but in subsequent contracts as Fau Chiu of the Kwong Yuen shop.
The defendant, Pau Kwok Chiu, afterwards gave evidence at considerable length.
His Lordship then made a decree that the terms of the will be carried out and that the usual accounts be taken. If the plaintiff's thought that that did not cover the other matters on which they desired enquiry-as to the Kwong Yuen, the Kwong Kee and the profits of the Gao! contract-they could draft the form aud submit it to him next day in Chambers, and he wou'd supply a formal decree, He ordered that the release of date 15th April, 1893, be set aside and gave plaintiffs costs up to that point.
Mr. Morgan Phillips contended that the defendant had never gone upon the release por relied upon it. He had stated at the commence-
ment that he abandoned the release.
His Lordship said that at any rate he gave costs so far as properly incurred for the purpose of setting it aside. So far as the action did not ask for the setting aside of the release, he could not now decide the question of costs.
The Court adjourned.
On the night of 29th ult. there burst upon the three Han cities a storm which has hardly bad its equal for some years. The Han river was in flood, and the anchors of the boating huddled along its shores were already in a state of tension, and many were torn from their moorings and hurried down by the current into the Yangtze, where several were wrecked. A raft of Hunan timber broke loose on the angisze, and was found next morning broken up around the hulks. The landing-stages and pontoons of Messrs. McBain and Matheson & Co. were completely destroyed, while Messrs. Greaves's hulk as well as their landing-stage was wrecked. Two steamers were obliged to anchor in mid-river, and were rocking about as if on the ocean, instead of coming up to their respective hulks. And if the vulgar interpretation of "Yangtsze" as
*
Jardine,
Son of Cceau is an incorrect one, the Fan. kow correspondent of the N.-C. Daily News writes, that river on Saturday (the 30th ult.) was evidently making good its claim to be recognised as such.
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