Wong Kwai Fan and Others v. Charles Bernard Brown

HCMP000025/1946

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS No. 25 of 1946.

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Coram: E.H. Williams, Puisne Judge

Date of Judgment: 29 January,1947.

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DECISION

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1. The question for determination in this case is whether Tsoi Sai Hi, having now reached the age of 21 years, is entitled to call for the transfer to him of certain property mentioned in the Third Schedule of the will, to wit 50 shares of the Hong Kong & Shanghai Bank, in view of the following provisions in the will:-

(a) provisions which call for the handing over to him of the shares on reaching the age of 23 years but, in case of death before that age unmarried the shares to form part of the residuary estate, and

(b) later provisions in the will directing trustees to hand over the balance of the residuary estate, after named legacies have been paid, to the said Tsoi Sai Hi on his reaching the age of 21 years.

2. Defendant contends that the true construction of the will is that the shares vest in interest at 21 and the gift is then contingent until he reaches 23 years. On the other hand, plaintiff relying mainly on the case of Saunders v. Vautier 10 L.J. Chancery p.354 contend that the true construction is that Tsoi Sai Hi is entitled to call for their transfer to him now. Defendant seeks to distinguish that case from that under consideration in that in Saunders v. Vautier, there was no gift over to other persons but in this case, there is a gift over to the widow or children of Tsoi Sai Hi should he die before reaching 23 years.

3. In cases of doubt in the construction of a will the presumption, applicable both to real and personal estate, is in favour of the earliest vesting of the gift which is possible in the context. (28 Hails. Laws Section 1445 at p.798). In Saunders v. Vautier, a testator bequeathed certain stocks to trustees upon trust to accumulate the interest until a named person reached the age of 25 and then to transfer the stook with accumulations to the named person. It was held that the legacy was vested and that the legatee having attained the age of 21, was entitled to call for the transfer. In the will under consideration as in Saunders v. Vautier, the testator does not make use of the word "vest". A study of the cases which were quoted before me does not appear to revesl with clarity any definite principle on which the Court in some cases has directed that legatees take a vested interest in the sense of legacies becoming payable before the specified event.

4. In the case of In re Ussher (1922) 2 Ch. 321, a testator bequeathed her residuary estate to trustees on trust to use the whole or part of the income for the maintenance of the person entitled until he should reach the age of 25 and then to transfer the same to him. The decision in that case was that the person interested took a vested interest on the testatrix's death and, on attaining 21, was entitled to an immediate conveyance and transfer.

5. Reference was made by plaintiff to the case of In re Courturier (1907) 1 Ch. 470 particularly at p. 473 where the following passage from the judgment of wood V.-C. in Gosling v. Gosling is quoted with approval:

6. The principle of this Court has always been, to recognise the right of all persons who attain the age of twenty-one to enter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by the testator to the effect that they are not to enjoy it until a later age:- unless, during the interval, the property is given for the benefit of another. If the property is once theirs, it is useless for the testator to attempt to impose any fetter upon their enjoyment of it in full so soon as they attain twenty-one. And upon that principle, unless there is in the will, or in some codicil to it, a clear indication of an intention on the part of the testator, not only that his devisees are not to have the enjoyment of the property he has devised to them until they attain twenty-five, but that some other person is to have that enjoyment, - or unless the property is so clearly taken away from the devisees up to the time of their attaining twenty-five as to induce the Court to hold, that, as to the previous rents and profits, there has been an intestacy - the Court does not hesitate to strike out of the will any direction that the devisees shall not enjoy it in full until they attain the age of twenty-five years." In Courturier's case, it was held that each legatee was entitled to the legacy on reaching 21 though there was a direction in the will to pay only part at 21, a further part at 25 and a further part at 31. In that case, there was no gift over of the principal on failure of the specified event.

7. Should the fact that there is a gift over in the present case to the widow or children of Tsoi Sai Hi if he died before 23 leaving a widow or children make me reach the conclusion that he is not entitled to payment on reaching 21.

8. There is this difficulty in the case if I so decide. By the earlier provision, if Tsoi Sai Hi, who is now over 21, should die unmarried before reaching 23, the 50 shares are to become part of the residuary estate. By the later provision, however, the residuary estate, after payment of named legacies, should have been paid to Tsoi Sai Hi on his reaching 21 years. The result of his death unmarried before 23 might therefore be an intestacy as to the shares, a construction which the Courts are disinclined to adopt if another construction can be put in the will which avoids this result.

9. It is clear that the testator was endeavouring by his will to secure that the 50 shares should pass to the widow and children of Tsoi Sai Hi should he die before 23 years but, in my opinion, he was attempting to do what Wood V. -C. in Gosling v. Gosling has stated it is useless to attempt to do i. e. , impose a fetter on the full enjoyment of the property after his reaching 21 years. I therefore hold that, on the true construction of the will Tsoi Sai Hi, having reached the age of 21 years, is entitled to call for the transfer of the 50 shares.

10. The costs of the hearing of this application will be paid out of the estate on solicitor and own client basis.

Representation: