In the matter of the estate of Seah Eu Chin, deceased
Report of two legal judgements, from 1895 and 1896, regarding a dispute over how the inheritance from Seah Eu Chin’s estate was to be divided among the sons of his eldest son, Seah Cheo Seah. The judgement quotes from Seah Eu Chin’s will (the original is presumably lost), and also states that he had at least two daughters.
Reproduced from: Straits Settlements Law Reports vol. 4, pp. 22-43.
In the matter of the estate of Seah Eu Chin, deceased
Seah Liang Seah
Seah Eng Kiat and others
Will–Construction–Male Issue–Illegitimate Male Issue.
A testator devised and bequeathed his real and personal property to trustees upon trust to collect the income and after paying certain expenses to divide the balance of the same into two parts and as to one moiety the testator gave the same to his sons in the following shares: Seah Cheo Seah 4 1/2 shares, Seah Liang Seah 2 1/2 shares, Seah Song Seah 1 1/2 shares and Seah Peck Seah 1 1/2 shares, and as to the other moiety after directing the deduction of two annual sums of $840 each, upon trust to accumulate and invest for the period of 3 Chinese years at a time and at the end of each period of 3 Chinese years to divide such accumulations amongst his said four sons in the same shares as therein mentioned with regard to the other moiety. The will further provided that upon the decease of any of the testator's sons his shares in the property up to the time of his decease should vest in his legal personal representative and after his decease his share which but for his decease would have gone to such deceased son should go to and be divided among his male issue in equal shares if more than one and in case of the decease of any of such male issue leaving male issue in turn such male issue should in the same manner take the parent's share. The testator further directed that his estate and the income thereof should be accumulated upon the trusts therein expressed during the space of the longest liver of the persons thereinafter named and for 21 years after the death of such longest liver, and declared that such persons were the following namely "My sons Seah Cheo Seah, Seah Liang Seah, Seah Song Seah, and Seah Peck Seah; my grandsons Seah Eng Kiat, Seah Eng Koon, Seah Eng Yeak, and Seah Eng Lok and my grand-daughters Seah Wah Yow, Seah Wah Nghee, etc." Seah Eng Kiat and Seah Eng Koon were legitimate sons of Seah Cheo Seah; Seah Eng Yeak and Seah Eng Lok were illegitimate sons of Seah Cheo Seah. The testator died in 1883 and Seah Cheo Seah in November, 1895.
Held by the C.A. (reversing Cox, C.J.) that Seah Eng Yeak and Seah Eng Lok were not entitled to participate with Seah Eng Kiat and Seah Eng Koon in the share of Seah Cheo Seah deceased.
Hill v. Crook (L.R. 6 H.L. 265) considered.
Section 100 of the Evidence Ordinance 1893, and Barlow v. Orde L.R. 3 P.C. 164) considered.
By his will dated the 6th of January, 1881, Seah Eu Chin, who was therein described as 'of Singapore, landed proprietor' and who died on the 23rd of September, 1883, devised and bequeathed all his real and personal estate, thereinafter called 'The Reserved Original Estate' to his trustee upon trust to collect the income and after paying his funeral and testamentary expenses and debts and other expenditure authorised by his will to divide the balance thereof at the end of every Chinese New Year into two equal parts and as to one moiety of the net income to divide the same into ten equal shares and the testator gave the same to his sons in teh following shares; Seah Cheo Seah four and a half shares, Seah Liang Seah two and a half shares, Seah Song Seah one and a half shares, Seah Peck Seah one of a half shares, and as to the other moiety (thereinafter called 'The Reserved Income Estate') after directing the deduction of two annual sums of $840 upon trust to accumulate and invest for the period of 3 Chinese years at a time and after deducting and carrying over to the next account the said two portions of $10,000 each at the end of each period of 3 Chinese years to divide the residue of such accumulations among his said four sons in the following shares: Seah Cheo Seah four and a half shares, Seah Liang Seah two and a half shares, Seah Song Seah one and a half shares and Seah Peck Seah one and a half shares.
Clauses 20 to 28 of the will authorised further payments out of the Reserved Income Estate and directed the executorship of the will to be closed as soon as practicable and gave directions as to the manner of keeping accounts of the trust Estate and limited the time for objections thereto and settled the legacies given to the daughters and directed the manner of investment of the trust Estate.
The remaining material clauses of the will were as follows:
29. Upon the decease of any of my sons his annual or triennial shares up to the time of his decease shall vest in his legal personal representative as part of his estate, but any money which my trustee may have advanced to him in anticipation or which he may have retained in his hands shall be deducted thereout. After his decease the said annual and triennial shares which but for his decease would have gone to such my said deceased son shall go to and be divided among his male issue in equal share if more than one and in case of the decease of any of such male issue having male issue in turn such male issue shall in the same manner take the parent's annual or triennial shares the same being shared equally if there shall be more than one of such issue and the same course and devolution shall be followed and take place in the case of the decease of any such last or future male issue in his turn. But if any such male issue (of what ever degree from myself) shall die without leaving any male issue then such deceased issue's shares shall lapse into the Reserved Income Estate and shall be re-dealt with and re-disposed of as the rest thereof for the time being to all intents and purposes.
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31. The Reserved Original Estate and the income thereof and the Reserved Income Estate and the resulting income thereof shall be held preserved accumulated and or disposed of and distributed upon the trusts and in the manner herein expressed during the space of the life of the longest liver of the persons hereinafter named and expressed to be the persons intended to be hereby referred to and for the additional space of twenty-one years more computed from the date of the death of such longest liver, but not longer (hereinafter called "the period during which the vesting of the property may if required by the trusts of this will be postponed.")
32. I declare that the persons intended by my will to be referred to as the persons during which the space of the life of the longest liver of whom and for the additional space of twenty-one years more computed from the date of the death of such longest liver during which the period of vesting of any property may be required by the trusts of this will be postponed are the following, namely: my sons, Seah Cheo Seah, Seah Liang Seah, Seah Song Seah, and Seah Peck Seah, my grandsons Seah Eng Kiat, Seah Eng Koon, Seah Eng Yeak, and Seah Eng Lok and my grand-daughters Seah Wah Yow, Seah Wah Nghee, Seah Wah Joo and Seah Wah Poh (the children of my said son Seah Cheo Seah) and my grandsons Seah Eng Tek, Seah Eng Keong and Seah Eng Bee and my grand-daughter Seah Wah Kee (the children of my said son Seah Liang Seah) and such other person or persons as I may name in any codicil or codicils to this my will.
33. Immediately on the expiration (hereinafter called the final period of vesting) of the period during which the vesting of property may if required by the trusts of this my will be postponed as aforesaid I direct my trustee to fairly apportion or to sell and convert into money the whole of the Reserved Original Estate and the unapplied income thereof and the then Reserved Income Estate and the then resulting income thereof and to divide the net proceeds thereof and the accretions hereinbefore directed to form part thereof between and among the persons who immediately previous to and at the time of the final period of vesting were entitled to or presumptively entitled to share in the annual distributions of the income of the Reserved Original Estate and in the triennial distribution of the Reserved Income Estate and all such persons who shall be so entitled or presumably entitled shall share such apportionment or in the nett proceeds of such sales and conversion of the whol of the Reserved Original Estate and the unapplied income thereof and of the then Reserved Income Estate and the then resulting income thereof and the accretions thereof respectively in the same proportions to which they were entitled or presumptively entitled to share in such annual or triennial distributions the whole thereof to go to one person if there shall be only one such person.
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36. I am desirous that (whenever it may be possible) my four sons Seah Cheo Seah, Seah Liang Seah, Seah Song Seah and Seah Peck Seah should and after them that their male issue in tail male respectively should become the executors of this my will as and in the order and manner hereinafter expressed and in preference and to the exclusion of all others whenever it may be possible. I therefore appoint my eldest son Seah Cheo Seah to be the executor of this my will, but or in case my eldest son Seah Cheo Seah should predecease me or (surviving me) die before taking the executorship on himself or in case he should die without completing the executorship or in case he should renounce refuse or neglect to take on himself the burden of such executorship as aforesaid I appoint my next son in seniority then alive to be such executor. But if any of the cases provided for and referring to the said Seah Cheo Seah as aforesaid shall also happen as to the said Seah Liang Seah or Seah Song Seah, I appoint my said other sons next in seniority then alive to be such executor and so that each of my said four sons shall severally and successively one at a time and one after another in order and course as they shall respectively be alive and in priority of birth succeed one another and become such executor. But if any of the cases provided for and referring to my said three elder sons Seah Cheo Seah, Seah Liang Seah, and Seah Song Seah as aforesaid shall also happen as to the said Seah Peck Seah I appoint my eldest grandson for the time being and in default of any such grandson I appoint my eldest great grandson for the time being (in seniority among each class respectively then alive and being respectively the issue in tail male of one my said four sons but without reference to the primogenitureship of the parents of each class) to be such executor and so that if any of the cases provided for and referring to my said four sons respectively as aforesaid shall also happen to such my grandsons or great grandsons respectively each of my said grandsons shall severally and successively one at a time and one after another in order and course as they shall respectively be alive and in priority of birth (but without reference to their parent's primogenitureship) succeed my said sons and succeed one another of themselves and become such executor and each of my said great grandsons shall severally and sucessively one at a time and one after another in order and course as they shall respectively be alive and in priority of birth (but without reference to their parent's primogenitureship) succeed my said sons (if there shall be no such grandson to do so) or (if there shall be) then succeed my said grandsons and also succeed one another of themselves my said great grandsons and become such executor.
Paragraph 39 contained similar provisions providing for the trusteeship of the will.
The 4 sons of the testator mentioned in the will were all legitimate. Seah Cheo Seah survived the testator and died on the 25th of November 1885 leaving two legitimate sons Seah Eng Kiat and Seah Eng Koon and two illegitimate sons Seah Eng Yeak and Seah Eng Lok, the persons named in the 32nd clause of the will, and the Defendants to the summons.
An originating summons was taken out by the Plaintiff the trustee of the will and a son of the testator that it might be determined whether upon the true construction of the will the two illegitimate sons of Seah Cheo Seah, viz: Seah Eng Yeak and Seah Eng Lok were entitled under the gift over in the 29th clause of the will to the male issue of any deceased son of the testator to a proportionate share of the share of the rents profits and income of the real and personal estate of the testator given by his will to his deceased son Seah Cheo Seah.
The summons as adjourned into Court and came on for hearing before Cox, C.J. on the 21st August 1895. On that day evidence was given by the Plaintiff to the effect that the testator knew Seah Eng Yeak and Seah Eng Lok were illegitimate, that their mother was buried in the family burial ground in the testator's lifetime, and that the testator was born in China but naturalized in Singapore where he lived for 60 years.
Brydges for the Plaintiff.
Fort for the Defendant Seah Eng Kiat.
Napier for the Defendant Seah Eng Koon.
Sisson for the Defendants Seah Eng Yeak and Seah Eng Lok.
The Plaintiff who is trustee of the will of Seah Eu Chin has called the Defendants before the Court that it may be determined whether on the true construction of the will two of the Defendants Seah Eng Yeak and Seah Eng Lok are entitled to a share of the rents and profits given by the testator to their deceased father Seah Cheo Seah. Seah Eu Chin, who died in 1883, left a large fortune, the estate being sworn under $1,350,000, to his four sons Seah Cheo Seah, Seah Liang Seah (the Plaintiff), Seah Song Seah, and Seah Peck Seah. The will provides that upon the decease of any of the sons his share shall go to and be divided among his male issue in equal shares. The eldest son Seah Cheo Seah died in 1885 leaving two legitimate sons Seah Eng Kiat and Seah Eng Koon and two illegitimate sons Seah Eng Yeak and Seah Eng Lok.
The question, which I have to decide, is whether the illegitimate sons are entitled to a proportionate part of their father's share, they being male issue within the meaning of the clause referred to above, or whether these words are to be construed as meaning legitimate male issue only. The question is of considerable importance for the two sets of Defendants, and has been fully and ably argued on both sides. For Seah Eng Kiat and Seah Eng Koon (the legitimate sons) my attention has ben called to several decisions as showing that under a gift to 'children' or 'issue' illegitimate children are not allowed to take and that they are not allowed to share with legitimate children, even if the testator's intention to that effect may be inferred from the will. Dorin v. Dorin(1 [L.R. 17 Eq. 463: 7 H.L. 568.]) Bagley v. Mollard (2 [1 Russ. & M. 581.]) Megson v. Hindle (3 [L.R. 15 Ch. D. 189.]) In re Hall: Branston v. Weightman (4 [L.R. 35 Ch. D. 551.]) Levy v. Solomon (5 [25 W. R. 842.]). In the case last referred to, Malins, V.C. certainly said "There was no doubt the testator intended to give to the illegitimate as well as to the legitimate children. But the intention cannot be carried into effect." The proposition seems to go too far. There is nothing to prevent illegitimate children or relatives from taking when the testator clearly intends them to do so (per Jessel. M. R. in Megson v. Hindle (1 [L.R. 15 Ch. D. 189.]) Hill v. Crook (2 [L.R. 6 Ch. 311: 6 H. L. 265.]) Owen v. Bryant (3 [2 D.M. & G. 697.]) Worts v. Cubitt (4 [19 Beav. 421]) In re Jodrell: Jodrell v. Seale (5 L.R. 44 Ch. D. 590: 91 A. C. 304.)). The principle to be extracted from the cases on the subject is that stated in the judgment of Lord Cairns in Hill v. Crook (2 [L. R. 6 Ch. 311: 6 H. L. 265.]). The term children in a will primâ facie interpretation is departed from. One class of cases is of this kind, when there is upon the face of the will itself and upon a just and proper construction of the words used in it an expression of the intention of the testator to use the term children, not merely according to its primâ facie meaning of legitimate children, but according to a meaning which will include illegitimate children. And Lord Cairns adds "In order to interpret the words of this will, it is not only allowable, but it is the duty of the Court to obtain the knowledge which the testator had of the state of his family." Seah Liang Seah has given evidence as to such knowledge on the part of the testator. He states that his brother Seah Cheo Seah lived in his father's house with both his wife Lee Quee Neo (the mother of the legitimate sons) and his concubine Lim Kah Lye (the mother Seah Eng Yeak and Seah Eng Lok). The boys were born there. According to Chinese custom Seah Eu Chin, as head of the family, would be informed of the exact position of all members of the household, and he would know who was the mother of the children born in the house. Lim Kah Lye lived about ten years in the house of Seah Eu Chin, and when she died, was buried in the family burial ground. Her sons, who are still infants, now reside with and are under the care of Lee Quee Neo, the widow of Seah Cheo Seah. The evidence thus shows that Seah Eng Yeak and Seah Eng Lok, though illegitimate sons, have recognized status in the family, and it is not difficult to believe that the head of this household, when he made his will, wished to treat them in the same manner as his other grandsons.
It was contended for the legitimate sons that the will should be construed according to the rules of construction which would be applicable if it was being construed in a Court of Justice in England, as provided by section 100 of the Evidence Ordinance 1893. But if this will of Seah Eu Chin was being construed in England, judges there would not construe it as if it were the will of an Englishman made in England. They would have regard to the customs and ideas of the testator as disclosed by the evidence rather than to technical rules of construction of the English law, Barlow v. Orde (1 [L. R. 3 P. C. 164]).
But apart from the surrounding circumstances of the case, I find in the will itself sufficient indication of the testator's intention. In paragraph 32 he mentions the persons during the lives of any of whoin his property is to remain vested in the trustees as follows: “My sons Seah Cheo Seah, Seah Liang Seah, Seah Song Seah and Seah Peck Seah, my grandsons Seah Eng Kiat, Seah Eng Koon, Seah Eng Yeak and Seah Eng Lok, my grand-daughters .. .. .. the children of my said son Seah Cheo Seah.” He thus refers by name to the illegitimate sons, and calls them as well as the other sons of Seah Cheo Seah “my grandsons.” In other words the testator gives in his will a dictionary by which the meaning of the forms he uses may be ascertained. When in another part of the will he makes a gift to the ‘male issue’ of his sons the words must be taken to include all those persons that are referred to by name as being grandsons. I accordingly hold that the defendants Seah Eng Yeak and Seah Eng Lok are entitled as well as the defendants Seah Eng Kiat and Seah Eng Koon to a proportionate share of the share of profits given to the father by the will.
The Defendants Seah Eng Kiat and Seah Eng Koon appealed against this decision.
Fort for the Defendant Seah Eng Kiat contended that the will must as regards the moveable estate be construed according to the law of the testator’s domicile, which was the Straits Settlements, and as regards the immoveable estate according to the lex loci rei sitae. In re Andros: Andros v. Andros (2 [L. R. 24 Ch. D. 637.]), Enohin v. Wylie (3 [10 H. L. C. at p. 12.]) Jarman on Wills vol. 1 p. 1. or in other words according to the law of the Straits Settlements. According to that law there was no sufficient indication that the illegitimate sons of Seah Cheo Seah were intended to share with his legitimate sons. Besides the cases referred to in the judgements he quoted Dorin v. Dorin (1 [L. R. 17 Eq. 463: 7 H. L. 568.]).
Napier for the Defendant Seah Eng Koon.
Sisson for the Defendants Seah Eng Yeak and Seah Eng Lok argued that the indications of intention that they shoudl share with the legitimate sons were sufficient even if strict English law were applied. He also argued that the English rule of law, by which the word ‘issue’ is construed primâ facie to mean legitimate issue only was not applicable to Chinese domiciled in the Straits Settlements owing to the nature of a Chinese marriage and the fact that the Chinese were polygamous. He refered to the following cases on this point:
In re Bryon: Drummond v. Leigh (2 [L. R. 30 Ch. D. 110.]), In re Haseldine: Grange v. Sturdy (3 [L. R. 31 Ch. D. 511.]), In re Brown: Walsh v. Browne (4 [62 L. T. 899.]), In re Horner: Eagleton v. Horner (5 [L. R. 37 Ch. D. 695.]), In re Harrison: Harrison v. Higson (6 [L. R. ’94, 1 Ch. 561.]), Hyde v. Hyde (7 [L. R. 1 P. & M. 130.]), In re Bethell: Bethell v. Hildyard (8 [L. R. 38 Ch. D. 220.]), Lim Chooi Hoon v. Chok Yoon Guan (9 [1 S. S. L. R. 72.]), Haleemah v. Bradford (10 [Leciester's Rep. 383.]), Hawah v. Daud (11 [Ibid 253.]), Quaik Kee Hock v. Wee Geok Neo (12 [4 Kyshe 128.]).
Besides the cases cited in the judgments, the following further cases were quoted, Smith v. Ladiard (13 [3 K. & J. 252.]), In re Ayles’ Trusts (14 [L. R. 1 Ch. D. 282.]).
In this case the question to be determined is, whether Seah Eng Yeak and Seah Eng Lok are entitled to a share in certain property left by the testator Seah Eu Chin. Seah Eu Chin left property to his four sons, one of whom was Seah Cheo Seah, the father of the applicants and also of Seah Eng Yeak and Seah Eng Lok. The will provided by Clause 29 that upon the decease of any of the sons of the testator his share in certain property should be divided amongst his “male issue” in equal shares, etc. Seah Cheo Seah died in 1885, leaving two legitimate and two illegitimate sons, the latter being the said Seah Eng Yeak and Seah Eng Lok. We now have to ascertain whether Seah Eng Yeak and Seah Eng Lok are entitled to a portion of the share referred to above left to their father, or whether the words “male issue” used by the testator are to be held to include legitimate male issue only.
The testator Seah Eu Chin had resided here for some years having come here at the age of 19, had become naturalized as a British subject, and it was not, as I understand, denied that he must be conisdered domiciled in this country.
His Honour the Chief Justice appears to have been of opinion that this case was to some extent governed by the principles laid down in Barlow v. Orde (1 [L. R. 3 P. C. 164]), but with all respect I am obliged to say that it does not seem to me that this case has much bearing on the present case. In Barlow v. Orde (1) the testator Colonel Skinner was domiciled in Delhi, there was no lex loci at that place and the law applicable to the succession depended on the personal status, which was regulated by the religion of the individual, and, in the event of such rule not being applicable, the Courts were, as provided by the regulations, to determine according to the rules of justice, equity and good conscience. There was no evidence that Colonel Skinner professed any particular religion and therefore it was held that the case had to be decided by the principles of natural justice, equity and good conscience, and that a technical rule of English law was not applicable.
The present case, however, seems to me to be on a different footing, as the testator Seah Eu Chin was domiciled in this Colony. Certain evidence ws given in the Court below as to the position and status in the family accorded to Seah Eng Yeak and Seah Eng Lok. Had the effect of that evidence been to show that in Chinese custom Seah Eng Yeak and Seah Eng Lok would be in just the same position in all respects as the Appellants the legitimate sons of the father, I think the evidence might have had material bearing upon the decision to be arrived at in this case.
The evidence too might no doubt I think have been of some importance if it had clearly disclosed that the testator himself treated Seah Eng Yeak and Seah Eng Lok in all respects in the same way as his legitimate grandsons and regarded them as being in all respects on the same footing as legitimate grandsons (see Hill v. Crook (1 [L. R. 6 H. L. 265.])). As it is, it does not seem to me the evidence given helps the case of Seah Eng Yeak and Seah Eng Lok very much, though I think the testator must have known that they were the illegitimate sons of their father by a concubine.
I think that, as the rule is that primâ facie ‘children’ in a will means only legitimate children, so the rule must be that ‘male issue’ primâ facie only means legitimate male issue. It has been argued that the fact that in clause 32 of the will Seah Eng Yeak and Seah Eng Lok as well as the Appellants are described as grandsons of the testator shews that the testator regarded them all as on the same footing and therefore the words “male issue” in cause 29 of this will must be held to include illegitimate as well as legitimate male issue, but in In re Hall: Branston v. Weightman (2 [L. R. 35 Ch. D. 551.]), the case which perhaps most resembles this case of those that been cited to us, Kay, J. held that the description of one Richard Weightman as the nephew of the testator in an earleir part of the will was not sufficient to include him in another part of the will amongst the children of Jane Weightman, the sister of the testator, and in Megson v. Hindle (3 [L. R. 15 Ch. D. 201.]) the Master of the Rolls held that the fact that the testator made a bequest to his “grandson James,” as he called him, who was an illegitimate child of his daughter did not necessarily imply that the testator intended he should participate in a gift to the children of his, the testator’s, daughter.
Again clause 32 of the will is not a clause in which any benefit is conferred; and further than this in cause 32 the grand-daughters of the testator who take no benefit under the will are referred to by name and mentioned as his grand-daughters.
It must also be noticed that in clauses 36 and 39 of the will; the testator speaks of grandsons, the issue in tail male of his sons; but as I understand, the words ‘issue in tail male’ can only apply to legitimate issue, and therefore the wording of clauses 36 and 38 seems to me to afford, if anything, an argument rather for excluding Seah Eng Yeak and Seah Eng Lok from the operation of these clauses than for construing the words ‘male issue’ in clause 29 to refer to illegitimate grandsons. It should also not be forgotten that these clauses 36 and 39 deal with the appointment of trustees and executors and are not clauses conferring benefits upon any persons.
I am also of the opinion that the use of the words ‘male issue’ in clause 29 of the will and of the words ‘persons’ in clause 33 shews an intention on the part of the testator to benefit classes rather than particular individuals.
To sum up, there is to my mind no such evidence either of Chinese customs or of the ideas and conduct, etc. of the testator as would justify us in holding that in the words ‘male issue’ he intende to include illegitimate as well as legitimate ‘male issue’: nor can I find that the testator has supplied us with a ‘dictionary, to use the words employed by Lord Cairns in Hill v Crook (1 [L. R. 6 H. L. 265]), from which it is clear that when he used the words ‘male issue’ in clause 29 of the will he intended to include illegitimate as well as legitimate male issue. We may perhaps be able to form conjectures as to what the testator intended, but that is not the question: for on the principle laid down in Hill v. Crook (1) and Megson v. Hindle (2 [L. R. 15 Ch. D. 201.]) we are not, I think, entitled to say that the words ‘male issue’ include illegitimate grandsons unless there is such a strong probability of the testator’s intending to include illegitimate grandsons that a contrary intention cannot be imputed to him.
For the reasons which I have given, I am of opinion that Seah Eng Yeak and Seah Eng Lok are not entitled to a portion of the share of the testator’s estate given by clause 29 of the will to the ‘male issue’ of their father, and I think this appeal should be allowed.
This appeal was very ably argued on both parts, and particularly on the part of the Appellant’s counsel, the form and substance of whose arguments I desire to acknowledge. By his will, dated the 6th of January 1881, the testator Seah Eu Chin called the ‘Reserved Original Estate’ upon trust (inter alia) after paying his funeral and testamentary expenses and debts and certain other expenditures to divide the balance for disposal either to the parties entitled or for conversion into the ‘Reserved Income Estate.’ After various directions to his trustees he then directed the surplus income of the ‘Reserved Original Estate’ to be invested until the end of the current year and that at the commencement of each Chinese year an annual account should be taken of all the income of the ‘Reserved Original Estate’ and of the compound income thereof and of the expenditure thereout and that the net balance should be divided into two moieties: and as to one moiety he directed it to be held upon the trusts of the ‘Reserved Income Estate.’ After directing the other moiety of the ‘Reserved Original Estate’ to be divided amongst his four sons Seah Cheo Seah, Seah Liang Seah, Seah Song Seah, and Seah Peck Seah in the share therein mentioned and after directing certain deductions to be made annually in favour of or as the share of two named daughters from the ‘Reserved Income Estate’ up to a sum of ten thousand dollars each, he directed the rest of the annual moiety of the ‘Reserved Income Estate’ and the income thereof to be accumulated for a period of three Chinese years at a time, and after certain other provisions he directed the said three years’ accumulation to be divided amongst his four sons in the shares therein named and after various other directions he directed in paragraph 29 of the will that upon the decease of any of his sons his annual or triennial share up to his death should vest in his legal personal representative as part of his estate and after his (the son’s) death the said share which but for his death would have gone to such deceased son should go and be divided among his male issue ‘in equal shares if more than one and in the case of the decease of any such male issue leaving male issue in turn such male issue should in the same manner take the parent’s share.’ That direction was followed by another prohibiting any of his said sons or any of their respective male issue to the remotest degree assigning or charging his share or interest under his will. He then by paragraph 31 directs that the ‘Reserved Original Estate and the income thereof and the Reserved Income Estate’ and the resulting income thereof are to be held accumulated and or disposed of and distributed upon the trust and the manner therein expressed during the space of the life of the longest liver of the persons thereinafter named and expressed to be the persons intended to be thereby referred to and for the additional space of 21 years more from the date of the death of the longest liver. He then declares (paragraph 32) who those persons are as follows:-
‘My sons Seah Cheo Seah, Seah Liang Seah, Seah Song Seah, and Seah Peck Seah, my grandsons Seah Eng Kiat, Seah Eng Koon, Seah Eng Yeak and Seah Eng Lok, my grand-daughters Seah Wah Yow, Seah Wah Nghee, Seah Wah Joo and Seah Wah Po (children of my said son Seah Cheo Seah) and my grandsons Seah Eng Tek, Seah Eng Keong, and Sean Eng Bee and my grand-daughter Seah Wah Kee (children of my said son Seah Liang Seah) and such other persons as I may name in any codicil or codicils to this my will.’ The testator has thus named sixteen lives during which the final vesting of his property is to be suspended. The will contains various other directions and amongst them I find that he provides for his said four sons becoming executors and trustees of his will and after them their ‘male issue in tail male’ respectively and in that connection he speaks of his ‘eldest grandson’ and ‘eldest great grandson.’
The will is divided into paragraphs, is in the English language and has evidently been very carefully drawn up by a lawyer: and there was no codicil thereto. The testator, when he died, left his said four sons surviving him. The eldest son Seah Cheo Seah died in November, 1885, leaving two sons by his wife Lee Quee Neo named Seah Eng Kiat and Seah Eng Koon (the real Appellants on this appeal and who are admittedly legitimate) and two sons by one Lim Kah Lye, a concubine to whom he was never married, by name Seah Eng Yeak and Seah Eng Lok who are the Respondents and who are admittedly illegitimate.
The testator was a Chinaman who had apparently lived in Singapore some sixty years, had acquired very considerable wealth comprising land and personalty, in Singapore, and had become a naturalized British subject whose domicile it is not contended was otherwise than that of Singapore or the Straits Settlements.
These proceedings were commenced by originating summons on behalf of the trustee of the testator’s will to have it determined whether the two Respondents were entitled under the gift over to the ‘male issue’ in paragraph 29 of the will to share with the Appellants Seah Eng Kiat and Sean Eng Koon in the ‘Reserved Income Estate’. The Chief Justice has decided that they are so entitled and we are called upon to say whether that decision is right.
Stated in brief, the real point in the case seems to be this. The gift over being to ‘male issue’ can we say that because the testator has described two children of his son by name as ‘grandsons, children of my son Seah Cheo Seah’ in that part of his will in which he names the persons during which the period of the vesting of the estate is suspended, looking at the will as a whole and having the evidence before us of the knowledge of his family the testator had, he intended to include them in the term ‘male issue?’ Can we so far dive into the testator’s mind at the time he made his will as to say that by ‘male issue’ he intended to include illegitimate grandsons? The Chief Justice has decided that he can do so, but he has gone further than this and has laid down a proposition to which I respectfully dissent, and which I will deal with before proceeding to what I consider the real point in the case. It is enacted by section 100 of the Evidence Ordinance 1893 that nothing in chapter 6 of the Ordinance shall affect the construction of wills, but they shall be construed according to the rules of construction which would be applicable if they were being construed in a Court of Justice in England. Apart from this enactment, it seems to be settled law that as regards personal estate the law of the testator’s domicile governs and as regards realty or immobilia the lex loci rei sitae. The testator’s domicile was Singapore and his property, so far as this case is concerned, was all here: and yet the Chief Justice has held that in England, if this case were before the Courts there, the judges would not construe the will as if it was the will of an Englishman made in England, but would have regard to the customs and ideas of the testator as disclosed by the evidence rather than to technical rules of construction of the English law: and for that proposition he cites the case of Barlow v. Orde (1 [L. R. 3 P. C. 164.]). It may be true that the judges would take into consideration the fact that the testator was a Chinaman: but Barlow v. Orde (1), if examined, does not support the Chief Justice’s proposition that the rules of construction do not apply and is clearly distinguishable. It is the well-known case in connection with the will of the celebrated Colonel Skinner. He was himself ‘filius nullis,’ i.e. illegitimate, being the son (probably) of a native Indian woman by an European father. His origin was unknown, and by his courage and military skill he rose to a certain rank and distinction in the East India Company and in recognition of his services he obtained large landed estates in the North Western Provinces of India and in Delhi. In the case of Barlow v. Orde (1 [L. R. 3 P. C. 164.]) which was brought to test the effect of his will, it appears that, when Colonel Skinner died, he was resident and domiciled in the Delhi territory, then a portion of the North Western Provinces. At that time certain regulations were in force, made by the East India Company for defining the jurisdiction of the Courts of the Province where the testator was domiciled: and under them the succession of an Hindoo was as a general rule, to be regulated according to Hindoo law, of a Mahomedan according to Mahomedan law, and of an East Indian Christian according to English law, but in every case for the purpose of determining the status personalis, regard was to be had to the mode of life and habits of the individual and to the usages of the class or family to which he belonged. If no specific rule could be ascertained to be applicable to the case, then the Judges were to act according to justice, equity, and good conscience, in other words, according to natural justice. The Judicial Committee of the Privy Council expressly say “there was nothing to indicate the religious belief or profession of the Colonel or his fmaily or what were their habit or usages.” Therefore, as it was impossible to affirm any particular law to be applicable to the construction of his will, the Privy Council had to determine any question in the will by the principles of natural justice, or in other words according to justice, equity, and good conscience, as provided by the Regulations in force when the Colonel died; and therefore they held that the technical rule of construction, that under a testamentary gift to children as a class illegitimate children are excluded, did not apply and permitted natural law to come in and include illegitimate children in that case, as the testator had acknowledged his illegitimate children during his life as his children. For these reasons I think Barlow v. Orde (1) has no application to the present case.
I now come to that portion of the Chief Justice’s judgment which deals with the principles in Hill v. Crook (1 [L. R. 6 H. L. 265.]): and I agree with him that the true principles to be extracted from the cases is that stated by Lord Cairns, and, although as Bowen, L. J. says in Jodrell v. Seale (2 [L. R. 44 Ch. D. 590 at 614.]) “Many judges from Lord Eldon’s time down to the present, judges of the highest authority and of the greatest learning, have used language (so to speak) of warning and language that amounts to more than Lord Cairns has said -- have used language to the effect that you must, before you can include under the name, which the law usually appropriates to a legitimate tie, persons who stand outside that strict line, find a necessary inference or a very clear intention to that effect” yet as proceeds “it seems to me that the only weight one can give to such language is to treat it, not so much as a canon of construction as a counsel of caution to warn you in dealing with such cases not to give way to guesses or mere speculation as to the possibilities of an intention, but to act only on such evidence as can lead a reasonable man to a distinct conclusion.”
Now let us see what are the principles Lord Cairns has extracted from the cases. In Hill v. Crook (1) at p. 282 he says as follows: “The term ‘children’ in a will primâ facie means legitimate children, and if there is nothing more in the will, the circumstance that the person, whose children are referred to, has illegitimate children will not entitle those illegitimate children to take.” Applying that proposition to the present case, the expression ‘male issue’ without the context therefore means primâ facie legitimate male issue, although the testator had illegitimate male issue. Lord Cairns then proceeds: “But there are two classes of cases in which that primâ facie interpretation is departed from. One class of cases is where it is impossible from the circumstances of the parties that any legitimate children could take under the bequest,” and he proceeds to illustrate that proposition by supposing a gift “to the children of my daughter Jane,” Jane being dead and having left no legitimate, but only illegitimate children: the conclusion is obvious that the testator must have meant the illegitimate to take, having the knowledge of their existence as illegitimate children. This is not the case here, and that class of cases may therefore be put aside altogether. He then proceeds: “The other class of cases is of this kind. Where there is upon the face of the will itself and upon a just and proper construction and interpretation of the words used in it, an expression of the intention of the testator to use the term ‘children’ not merely according to the primâ facie meaning of legitimate children, but according to a meaning which will apply to and which will include illegitimate children.” He then proceeds to illustrate the proposition by a case of a testator being aware and so saying in his will that his daughter before marriage had had illegitimate children and that he intended to provide for all her children, and then making a bequest to the “children of my said daughter.” He then says that the case under his consideration comes within the proposition, and then proceeds: “In order to interpret the words of the will it is not always only allowable, but it is the duty of the Court to obtain the knowledge which the testator had of the state of his family.” By this the learned judge did not of course mean that the Court is to travel beyond the evidence or admissions in the case, but to obtain the knowledge from the case before him: and he accordingly then proceeds to examine the state of the testator’s knowledge, from the admissions in the case, and he finds the admissions to be as follows:- John Cook had formerly been married to Sarah Ann, one of the daughters of the testator, and, the said Sarah Ann having died, John Cook with the testator’s knowledge went through the ceremony of marriage with Mary, another daughter of the testator, and who in his will he referred to as ‘Mary the wife of John Cook:’ the said union was always looked upon by and treated by the testator as an existing marriage; two children of the union were born in the testator’s lifetime, and he was in the habit of constant and affectionate intercourse with his daughter Mary and John Cook, and always treated him as his son-in-law and the children as his grandchildren. He then proceeds: “if the matter had stopped there, if your Lordships had nothing more than this admitted state of the family and the habit of the testator with regard to the treatment of his grandchildren that would not in my opinion have been sufficient. If even with that statement you found in the will merely a reference to the “children of his daughter Mary” it would not in my opinion have been sufficient to refer to this statement of the fact with regard to the family, to entitle you to enlarge the term “children” so as to include illegitimate children.” I pause here because it appears to me that that opinion of Lord Cairns has particular pplication to the case under our consideration. Lord Cairns says that, even with that knowledge of the family that the testator and the Court had, you cannot enlarge the primâ facie meaning of “children” if you find in the will merely a reference to the children of Mary.
In the will under consideration the only reference to the Respondents is in the 32nd paragraph, where the two Appellants they are described as, “grandsons, children of my son Seah Cheo Seah.” No benefit is conferred on them by the will by name, and they are mentioned with others who do not take any benefit under the will: and the only difference that I can see between the present case and that put by Lord Cairns is that the illegitimate grandsons are mentioned by name along with legitimate grandsons; but that is in some measure counterbalanced by the fact that they are mentioned with other grandchildren, male and female, some of whom are not benefitted by the will. With regard to the testator’s knowledge of his family, we have the guidance, such as it is, and it is very meagre, of Seah Liang Seah, one of the testator’s sons. (The learned Judge read the evidence of Seah Liang Seah.) From the evidence of the same witness by affidavit it would appear that the Respondents, who are infants, now reside and are under the care of the mother of the Appellants.
On this evidence the Chief Justice finds that, though illegitimate, the Respondents had a “recognized status” in the family: and he adds, “it is not difficult to believe that the head of the house, when he made his will, wished to treat them in the same manner as his other grandsons.” That appears to me very much like conjecture. But the only evidence before us is that the testator probably knew they were illegitimate children by the concubine and that they were born and lived in his house. Other wise there is no evidence of what position they occupied in the house, what was their status nor that the testator as in Hill v. Crook (1 [L. R. 6 H. L. 265.]) recognized and treated them as his grandsons; and it is the case rested here, I could not say that, diving into the testator’s mind, he intended to include them in the expression ‘male issue.’ Assume the testator knew these grandsons, as he calls them, were illegitimate, except for the fact that he allowed them to live in his house, there is no evidence that they were treated as on the same footing with legitimate grandsons or that their mother was treated as his daughter-in-law.
In Hill v. Crook (1 [L. R. 6 H. L. 265.]) at p. 285 Lord Cairns says again, “if you find that that is the nomenclature used by the testator, taking his will as the dictionary from which you are to find the meaning of the terms he has used, that is all which the law requires.” But what is the nomenclature to which he refers--correlative terms ‘husband and wife’ ‘father and mother’ and ‘children’-- a testator calling that a marriage which is not a marriage, calling a daughter of his wife of a certain husband when she is not a wife, and speaking of her children in that connection--then looking at the knowledge of the testator as to these matters, the inference is very strong that the testator meant to benefit illegitimate children of such a connection.
Does such nomenclature exist in the present case? The gift is to male issue, and in another clause, dealing with a different matter, viz. the period of vesting, he mentions the two Respondents by name as his grandsons. Can I say that is sufficient? Can I say yea with the knowledge the testator had of his son’s family that he intended to benefit them and include them in the word ‘male issue’? I can speculate he did, but I confess that I cannot come to the conclusion he did. Is there anything else in the will, using it as the dictionary to gather the meaning of the term ‘male issue,’ in connection with his knowledge of his family from which I can say he meant his illegitimate grandsons to be included in the expression ‘male issue’? There are the expressions in connection with the executorship and trusteeship of his will and property, ‘male issue in tail male,’ ‘eldest grandson’ and so on, used in contradistinction to the term ‘male issue.’ Here no doubt he has used the expression ‘grandson,’ but by using the technical expression ‘male issue in tail male’ he appears to me to have shown that he limited the case to legitimate grandsons ‘heirs of the body.’ The use of such expressions where no estate is created seems inappropriate and does not appear to throw much light on the real question and rather tends in my thinking to increase the difficulty of arriving at any definite opinion. In in re Humpries: Smith v. Millidge (1 [L. R. 24 Ch. D. 691.]) a case, in which the illegitimate child was described by the testator as the eldest daughter of his deceased daughter Sarah Ann Smith, North, J. said “I think Bagley v. Mollard (2 [1 Russ. & M. 581.]) and Megson v. Hindle (3 [L. R. 15 Ch. D. 198.]) are sufficient to show that I could not for that reason alone hold that she was intended to be included under the description of “children” of the daughter Sarah Ann.” And in in re Hall: Branston v. Weightman (4 [L. R. 35 Ch. D. 551.]) at p. 557, Kay, J., after citing the words quoted above from North J.’s judgment, says: “Here there is nothing in the will to include Richard H. Weightman among the children of Jane Weightman except the description of him in the earlier part of the will by the word ‘nephew.’ I am bound to say on the authority of the cases that does not seem to me by itself to be sufficient.” So here, so far as I can see, there is nothing in the will to include the Respondents among the ‘male issue’ of the testator, except the description of them by names in a later part of the will and in a clause which confers no benefit as ‘grandsons, children of my son Seah Cheo Seah:’ and that I do not think is sufficient. It is also to be remarked that in the present case we have to interpret the expression ‘male issue’ and not the word ‘children’ as in Hill v. Crook (5 [L. R. 6 H. L. 265.]) and other cases. This is not a case in which Chinese law or custom as practised either in China or by Chinese in the Straits Settlements has been established, which might show that children of a concubine are treated in all respects as children of the first wife, and that such children are deemed to be ‘born into the lap of the first wife’ and, as such, to be entitled equally with her children to be treated as sons and to inherit equally with them in case of intestacy. If such facts were proved, my decision might be different, but I express no opinion on that point until it arises.
Solicitors for the Plaintiff.--Khory & Brydges.
Solicitors for Seah Eng Kiat.--Donaldson & Burkinshaw.
Solicitors for Seah Eng Koon.--Drew & Napier.
Solicitor for Seah Eng Yeak and Seah Eng Lok.--A. J. Sisson.
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