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Colonial Cases

In the Estate of Blow, 1890

[succession]

In the  Estate of Blow


Supreme Court of China and Japan
Rennie CJ, 8 January 1890
Source: North China Herald, 10 January 1890

LAW REPORTS.
H.B.M.'s SUPREME COURT.
Before Sir Richard Rennie, Chief Justice.
Shanghai, 8th January 1890
IN THE MATTER OF THE WILL OF HENRY McCLEERY BLOW, DECEASED.
  Mr. H. S. Wilkinson was for the petitioner, Mr. Wainewright for Annie Blow and Alice Blow (children of the deceased), and Mr. Dowdall for Ann Hardy Blow, and H. St. Clair Knox (the sister and nephew of deceased).
  This was a case in which the executor under the will of Mr. Henry McCleery Blow late of Tientsin, comes to the court to have that instrument interpreted, under the circumstances set out in the petition.  The will was drawn by the late Mr. John Bailey, an accountant, and at one time lawyer's clerk here.  The case is an instance of the danger of entrusting to incompetent hands the drawing of wills.  The petition was worded as follows:-
  The humble petition of Ernst Walter Tisdall of Shanghai, master mariner, showeth as follows:-
- Henry McCleery Blow, late of Tientsin, in China, deceased, duly made his last will dated the 30th day of June 1887, and appointed Robert Mackenzie, merchant, of Shanghai, Ernest Walter Tisdall, the petitioner, and Henry St. Clair Knox, of Tientsin, aforesaid, the nephew of the testator to be the executors and trustees of his said will.
- The said testator died on the 6th day of August 1888 without having revoked or altered his said will.
- The s aid will was duly proved by the said Ernest Walter Tisdall alone on the 15th day of August in Her Britannic Majesty's Court at Tientsin.
- The said Robert Mackenzie and the said Henry St. Clair Know have renounced probate of the said will and have disclaimed the trusts thereof.
- The testator by his said will after certain bequests devised and bequeathed the residue of his real and personal estate to the said executors and trustees in trust for sale and conversion and after the payment of the said bequests and the payment (out of such part of the personal estate as should consist of money) of his funeral and testamentary expenses and debts to invest 10,000 taels for the maintenance and education of his reputed daughters Anne and Alice during their minority and thereafter the said sum to be distributed as in the said will directed and after the declaration of such trusts the said will contains directtions expressed in the words following, that is to say:
"And as to all the rest and residue of my real and personal estate I direct my trustees the pay therefrom to the said Lin Qui the mother of my reputed daughters Annie and Alice during her life time the sum of one hundred and eighty dollars per annum by equal monthly instalments of fifteen dollars per month and after having made due provision for the payment of this sum, I direct my trustees and executors to pay to each of my said reputed daughters Annie and Alice upon their becoming of age or marriage their heirs executors or administrators one clear half share of the net proceeds hereof and I further direct my trustees and executors to pay the remaining clear half net proceeds thereof to my sister Ann Hardy Blow and to my nephew Henry St. Clair Knox, their heirs, executors, administrators or assigns and as they may by will or other disposition direct or appoint."
- The said reputed child of the testator Annie Blow is of the age of 17 years or thereabouts and the said reputed child Alice is of the age of 13 years or thereabouts.  Both the said children reside at Shanghai within the jurisdiction of this Court.
- The said Ann Hardy Blow resides at 1, Highfield Terrace, Brookfield Road, Birmingham, in the county of Warwick in England.  Robert Mackenzie, of Shanghai, merchant, is the attorney to act for her in the matter of the trusts of the said will.
- The said Henry St. Clair Know resides at Tientsin within the jurisdiction of this court.
The opinion, advice or direction of this Honourable Court is desired upon the following questions:-
- Whether the said Ann Hardy Blow and Henry St. Clair Know are entitled to a half share or any other and if any other what share of the residue of the monies arising or to arise from the sale and conversion of the testator's real and personal estate after the payment of his debts and funeral and testamentary expenses and the legacies given by his will.
- Whether of the said Ann Hardy Blow and Henry St. Clair Knox are entitled to apply such share, such share disposable to them jointly or if not how otherwise.
- Whether the petitioner ought to pay  such share to the said Ann Hardy Blow and Henry St. Clair Knox, and if so when.
- Whether each of the said reputed children Annie and Alice is entitled to an interest (vested or contingent) in one-half share of such residue or only in one-fourth share or in any other and if in any other what share of such residue.
- Whether such share is vested or contingent upon their becoming of age or marriage.
- In what manner the costs of this appeal should be paid or provided for.
Mr. Wilkinson said that he appeared for Capt. Tisdall, one of the executors and trustees under the will of Henry McCreery Blow, deceased.  The present suit was brought under the Trustee Relief Act in order to obtain the opinion of the Court upon the construction of the will of the deceased, probate of which he now handed in.  The instrument had been drawn by a gentleman, who had been in the habit of preparing wills, but who was not a practitioner of this court, and was now deceased.  The trustee and executor was one of three trustees and executors appointed by the will, the other two, Mr. Robert Mackenzie and Mr. Henry St. Clair Knox, having renounced probate and having also disclaimed the trusts of the will, and he now put in two formal disclaimers. The trustee was practically the guardian of the infant children, but with respect to the matters before the court it was his duty to be impartial, and as the two parties were both well represented here, he proposed to leave the argument of the question to them.
    Mr. Dowdall suggested that the learned counsel for the trustee should stat his views of the case.
  Mr. Wilkinson said that he was prepared to give any information the Court might ask him for, but he did not think that he ought to offer any argument at the present stage.
  Mr. Dowdall in this case they had [a] will containing two bequests which are, on account of the words "each of" in the prior of them, inconsistent with each other.  He submitted that the court should look for the intention of the testator in the general tenour of the instrument, that passages irreconcilable with the general context should be rejected; that in case of absolute impossibility of letting two inconsistent dispositions stand, the ulterior should prevail, but that if the prior can be controlled by the second so that both may stand, this should be done.  The will could hardly be said to have been drafted with much precision.
  Mr. Wainwright - I consider it rather an ambitious flight for the worthy old gentleman who drew it, and not nearly so bad as some efforts of the same sort I have come across.
   Mr. Dowdall - The testator is made to say that he sets aside a certain sum for the maintenance and execution of his children.  Of course if the request were to take effect, there would be no doubt about my clients getting their half share of the estate. He then cited the case of Sherrat v. Bentley 2 Milne and Keene 149; Brocklebank v. Johnson 20 Bevan 206, and submitted that the court ought to make a decision that the words "each of" should be rejected as having been inserted by mistake.
  Mr. Wainewright said that there was also the question as to whether the infants were joint tenants or tenants in common, but perhaps that question might as well be left to be dealt with hereafter if necessary.  As to Mr. Dowdall's argument he did not think he could usefully contend against it.
The Chief Justice - You admit that your clients can only receive one-fourth from the estate?
  Mr. Wainewright - Yes.
  Mr. Wilkinson - I would suggest that without solemn argument nothing should be decided bearing upon the question as to whether the legacy to the infants was to them as joint tenants or as tenants in common.
  After some further argument his Lordship made an order that Ann Hardy Blow and Henry St. Clair Knox are entitled to one half of the residue of the testator's estate, and that Annie Blow and Alice Blow ae entitled to the other half in equal shares.  The question as to whether in joint tenancy or as tenants in common, and whether vested or contingent, was to stand over by consent, with liberty to either party to apply, costs of all parties to be paid out of the estate.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School