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Reports, 1885; and Watson and King, 4 Camp bell, p. 272. The last case was dated 1815. A sailing ship o a voyage from Jamaica to Eng. land' was last seen at sea on 7th March, 1814, and letters of administration were produced in Court on 14th December, 1815. This case was referred to iu Taylor as a authority on this point. In the case of Hutton this was saling ship from Manila to London. She started in July, 1835, and was at heard of again. In February, 1837, the Court presumed the deatli of the captain. In the case of Alston (1892) a sailing ship from Liverpool to Pera was last heard of on 6th j September, 1890, and eighteen months later | leave was given to presume deith. In the case of Johnson--it was also a sailing ship case-he was last heard of on 2nd February, 1897, and on 20th December next year leave was given to swear dea h. They only asked for leave to swear death. There were some questions about the will which they did not enter into at all just now,
Mr. Lammert then went into the box and gave formal evidence to the effect that the ship was tot insured, nor the cargo either, on this particular voyage.
His Lordship said he would give leave to swear death as having occurred on or since 7th May, 1901. This was a case which did not come before the Court in Hong ong often. It seemed that the ordinary law was that when a man bad not been heard of for a period of seven. years bis death might be presumed, but there seemed to be exceptional cases in which death had been presumed at a less period, and among those cases he had been referred to four of which Alston was of comparatively recent date. There the ship was last heard of on 6th September, 1890, and he found that in March, 1892, about eighteen months afterwards, the President gave leave after hearing counsel; to swear the death as having occurred on or after 6th September when the ship was last heard of. He did not think he would be doing any body any injustice by following the course in that case, and therefore he gave leave to swear death as having occurred on or after 7th May, 1901, which was the date when the ship actually left Hongkong Harbour, having taken out her clearance some four days previously. Probate would be dealt with separately.
The Court adjourned.
Monday, 25th January.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIE WILLIAM M. GOODMAN (CHIEF JUSTICE.)
PAU LEUNG AND OTHERS V. POW KWOK CHIU.
This was a case which was last before the Court on 10th September, 1902. Plaintiffs' claim as legateas under the will, dated 20th January, 1876, of Pow A. Tai, alias Pow Mun Chun deceased, was to have the estate of Pau A Tai administered, defendant being sued as executor of the deceased. Mr E. H. Sharp, K.C., barrister-at-law (instructed by Mr. John Ha tings, solicitor), appeared for the defendant. The plaintiffs were unrepresented, but one of them, Pau Ping, appeared personally.
The plaintiffs' claim in the first instance was to have an account taken of the estate of the deceased and of all the belongings and transac- tions by the defendant with or without reference to the said estate. When the case came before the Court originally a reference was made to Mr. Bruce Shepherd, the Official Receiver, and it was adjourned pending his report.
In the petition it was stated that the plaintiffs were the three sons of Pau A Tai 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 Hongkong, 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
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THE HONGKONG WEEKLY PRESS AND
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to be under $6,000. The property consisted of two parcels of land, Inland Lots Nos. 239 and 280, the kwong Ya-n 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 concealed from them the true amount and value of the property left to them by the testator and had lost by negligeuce 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 re- ference to the estate, the plaintiffs had re- ceived from the defendant no more than Iolani 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 deminds.concerning the estate. He stated that the only property was Inland Lot No. 23 and one-half of the Kwong Yuen shop. t the date of thxecution of the release the plaintiffs were under the age of 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 referencs to the said estate, and that the defendant be ord red to pay the plaintiffs such sums, together with com. pound interest at the rate of 8 per cent, per annum, as on the taking of the account might be found to be due from the defendant to the plaintiffs.
In his answers defendant denied that the estate included cargo-boats or jewelry except: a gold watch, or was of the value of $19,000. He had rendered to the plaintiffs frequent and proper accounts of his executorship. From the time he became executor until the division of the estat, he devoted the whole of the income arising from the estate to the support and education of the plaintiffs; and as the income was insufficient for that purpose he supple. mented it from his own money to the amount of $6,571. When the estate was divided and the release executed, the defendant gave the plaintiff a full and complete account of the executorship and the plaintiffs signed their approval.
Mr. Sharp, K.C., said in his opening statement that this Was an action for the administration of the estate of Pau A Tai in respect of which there had been a recent application in chambers. Plaintiffs were bis sons, the beneficiaries under his will. There was a reference to Mr. Bruce Shepherd and certain accounts were directed, Mr. Bruce Shepherd being appointed special referee. His certificate was filed on the 18th December, 1903. He (Mr. Sharp) was now asking his Lordship to approve of that certificate and on the strength of that to enter judgment for the defendant, This was a matter of great importance to the defendant, who was a man of good standing in Hongkong, an honourable man of good position, who only wished to clear himself of the reckless and unjustifiable charges of fraud which were made against bim in this action. Defendant, as his Lordship would see from the certificate, had proved that he accepted this executorship when the plaintiffs were young children. The estate was at that time either insolvent or practically so. Defendant managed the estate and worked the businesses belonging to the testator for 17 years, producing some- thing like $35,000 from the businesses in that period. He maintained and educated these children until they attained the age of 18 years, when under the will the estate was to be distributed. He then distributed the balance in 18 3, when the youngest son had reached the age of 18, and seven years later than that, after acquiescing in the arrangement for seven years, plaintiffs brought this action. The plaintiffs' whole case was one of fraud, as appeared from the pleadings. The word "fraud" appeared a very great number of times in the statement of claim. Defendant was said to have fraudulently concealed from the plaintiffs the true value of the property and fraudulently induced them to execute a
January 30, 1904.
release; also that in that release the value of the property in Hongkong was fal-ely and The fraudulently stated to be so and so. referee's certificate showed that defendant's- statement of facts was perfectly correct, that his division of the property was more than honest that was to say, h made for the plain- tiffs all that they lived on for 17 years, and the certificata showed also that the division was made and the release signed when the youngest sou reached the age of 17 years, according to the will. An acknowledgment from the sons was got and though défendant never stood upon that he said he was bound to, take it when the youngest son reached the age of 17, according to the terms of the will. Defendant swore the estate at $6,000 although it was only $4,000. Mr. Bruce Shepherd found it was only worth $5,000, and was burdened with debts to the amount of $9,000; so that it was absplately insolvent, Compound interest was asked for on the basis of fraud. In counsel's statement at the former hearing of the case the point of fraud was strongly enforced.
His Lordship said he thought according to his recollection that the plaintiffs said they could not do anything while this release continued and they asked that it be set aside After enquiry plaintiffs' solicitor, Mr. Thomson, when he had heard the evidence withdrew the allegation of dishonesty, admitting that it was groundless; and Mr. Bruce Shepherd referred to that in his certificate, also submitting that plaintiffs' case of fraud was wholly groundless. Defendants asked for judgment and costs. At the same time there was a technical flaw in the defendants' case. The executor should have asked the Court to fix the remuneration which he should have for carrying on the business instead o fixing it himself. and therefore the plaintiffs had got something to go upon.
Mr. Sharp said he would ask his Lordship to grant a remuneration, Mr. Bruce Shepherd having found that the defendant was entitled to
remuneration.
His Lordship-That would make a variation of the certificate.
Mr. Sharp-They have asked for a variation of the certificate.
His Lordship-I think the safest way would be to give judgment and costs. ·
Pow Ting, one of the plaintiffs, was then put He stated that he had authorised into the box.
{ bis brother to bring this action.
His Lordship, addressing Pow Ting, said that on 22nd January, 1876, his father died and left the defendant Pau Kwok Chiu as exécutor. Probate of the will was granted on 11th February, 1876, to the defendant. At that time Pow Ting and his two brothers were small boys and that part of their father's business which related to getting contracts from the gaol was worth $400, as had been expressly stated by Mr. Bruce Shepherd. If the executor, as he might very well have done had he not had the song' interest at heart, had sold that business it would have fetched $400. But that business was carried on by the executor in the interests of the family, and there was a very personal element there, for the executor had to secure the contract from year to year as the tenders were put up. He carried it on for a great many years and the plaintiff Pow Ting and his brothers got a sum of some $7,000. There was only one technical flaw in the executor's conduct that his Lordship could discover. Instead of taking three-tenths, which was a very reason- able sum indeed,; for his trouble and risk in the matter, if he had asked the Court to fix for him the remuneration, and the Court had allowed him, which he thought would have been a reason- able sum, about $50 a month for carrying on the business, that would have been $600 a year, and in 17 years that figure would have come to $10,200. With regard to all the rest of the property, in his opinion, acting upon the uachallenged report of the special referee, Mr. Bruce Shepherd, who had gone very carefully into this matter, he found the executor had done his full duty by the three boys. He had dons a great deal more indeed than most executors would have done. The will directed the property to go to the three boys when they had arrived at the age of 18 He supposed the father thought they would have sufficient wisdom by that time to deal with the property. As a matter of fact the executor did give them the property at that date, 15th April,
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