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Colonial Cases

In re the estate of Smith, 1879

[succession]

In re the estate of Smith

United States Consular Court, Shanghai
19 May 1879
Source: The North China Herald, 27 May 1879

 

UNITED STATES CONSULATE-GENERAL.

Shanghai, 19th May

Before D. H. BAILEY, Esq., Vice-Consul General.

In re Estate of EDWIN MAURICE SMITH, deceased.

   The COURT said this was an application on the part of John Petrie Bisset for the probate of the last will and testament of Edwin Maurice Smith, deceased, on a petition filed in the regular way.  There were certain objections presented against the probate of the will, and the Court had met to hear the argument.

   Mr. WAINEWRIGHT said he appeared in support of the petition.

   Mr. DRUMMOND said he with Mr. Henderson appeared on behalf of the estate and for the heirs and beneficiaries under the will now residing in the United States.

   Mr. HENDERSON supposed the usual course would be adopted, namely to first hear the argument on the objections as to whether they were sufficient to upset the petition.  This was the course taken in the United States in reference to these kind of matters, and it would give Mr. Wainewrightr a full opportunity to know what the objections were and to hear the argument in support of them.

   Mr. WAINEWRIGHT said he should like to know who the heirs and beneficiaries were, and who had instructed his learned friends to appear on their behalf?  If there were heirs and beneficiaries who objected to the probate of the will it should be strictly proved.  The proper course in a proceeding of this kind was for the petitioner to prove his case to the satisfaction of the Court, except when a caveat had been lodged against the will by some persons entitled to dispute it.  But here persons had come to the Court and  said they appeared for the hairs and beneficiaries under the will, but he did not know what interest the estate, as an estate, could have in opposing the probate of the will if the application now made by his client was properly based.

   As he understood the matter it stood thus: The Court had appointed an officer who was styled "receiver."  He took it that in reality that officer was nothing more or less than what was called in some American codes a "special administrator" to protect and administer the estate until the proper administrators or executors claimed probate, and the fact that the latter did not come forward immediately did not alter their position.  An interim or special administrator was a legal officer, but the very second a proper person came in and claimed probate the functions of the special administrator ceased, and as the representative of the executor of the will he maintained that Mr. Henderson had no standing in Court.  He (Mr. Wainewright) represented the estate, as the position of the only executor of the will who had not renounced his right and title to probate, was paramount to that of his learned friends.

   In pint of fact Mr. Henderson represented the special interim administrator, who was styled by the Court Receiver with no interest whatever in the matter - he might have a pecuniary interest at stake, but he had no right to protect that interest as he now seemed desirous to do and he had no locus standi. As to the heirs and beneficiaries, he thought he was entitled to have some authority produced, as to the instructions they had given.  At present the authority given was very vague indeed.  He should like t o know their names, and whether they had given instructions that ht e probate of the will was to be opposed on their behalf.

   Mr. HENDERSON said if his learned friend had not assumed there was no authority perhaps he would have avoided the necessity of raising these objections.  He did not think Mr. Wainewright had any right to argue his objection as regarded the heirs and beneficiaries.  As a matter of fact they were not proceeding without authority, and he did not know on what grounds Mr. Wainewright assumed they were.

   Mr. HENDERSON, as to his right to appear on behalf of the estate, said the estate was in the custody, in the special care, and under the jurisdiction of the Court, by virtue of the law of the united States   directing Consular officials to take charge of the estates of deceased American citizens on their death in foreign countries, and by virtue of the authority conferred on the Court and consulate, by the treaty between the United States and China.  Not only had the Court these powers with reference to the management and jurisdiction of the estate, but it also had its probate and equity powers as well.  Under these powers the Court had appointed an attorney to represent the estate as a whole for those to whom it might ultimately fall, and by virtue of special authority, which the Court had knowledge of, the Consul-General appointed a person to represent the heirs and beneficiaries in the United States.  With regard to the first question, having regard to the position of the estate and the duty of the court to preserve it for those to whom it would ultimately fall, the Court could not hand it over until persons came forward who showed themselves not only to be entitled to it by law under the will but that they were also legally competent to take the management of it according to the rules of estates in administration or trust, as this estate seemed to him to be.

   He maintained that it was the duty of the Court to appoint Counsel for absent heirs and beneficiaries.  There could be no question, he thought, on this point, but the appointment in this instance did not rest upon such authority, but on special authority from the Department of State.  On this point he would place in Mr. Wainewright's hands a letter received by the United States Consul-General, not in his judicial capacity, but as the representative of the heirs and beneficiaries in the United States to represent them in all these matters, and it was left to the discretion of the Attorney as to the course to be adopted.

   Mr. WAINEWRIGHT contended that the executor under the will coming into Court and asking for probate ought not to be placed in a different position by the fact that there had necessarily been a delay in making his application to that which hew would have been in if he had made his application immediately after the death of the testator.  Moreover, it certainly had not been the practice of the Court to think it necessary to protect estates from the person in whom the testator confided and appointed to represent him.  The Court, of course, would require that the proper formalities should be gone through as to the authenticity of the will and the appointment of the application for probate; but, as it seemed to him, the Court had appointed some one to fight the executor.  However, he could not see the ground upon which he could fight him, and submitted that he had no locus standi, he being as it were the wolf protecting the lamb.

   In the numerous cases of the proof of wills within his knowledge, there was not a single instanced where such a position was taken up as that which his learned friend now asked the Court to take up.  He submitted that he was entitled to come to the Court with his evidence, and in the absence of the parties who have an interest in opposing the will, he was entitled, if he satisfied the Court, to probate and testamentary letters.  He must protest, in the strongest possible way, against the right of his learned friend to appear and oppose his application for probate.

   The COURT - Certainly it is a well-settled practice in all Courts at Home that the heirs or persons instructed to appear for them can come forward if they object to the probate of the will.  In addition to that, I have been, as Consul, instructed by my Government to appoint an attorney to represent the heirs and beneficiaries of this will residing in the United States, and under those instructions, and I am bound by those instructions, I made an appointment. The person appointed stands here as the representative of the heirs and beneficiaries, and he acts on his own responsibility, and I think he has a right to appear on their behalf and raise any objection they could raise if they were present, and if they were here they would certainly have a right to present their objections which the Court would be obliged to consider.

   Mr.  WAINEWRIGHT was quite ready to admit that the Court as Consul and Judge, having been instructed to appoint some one to represent their heirs and beneficiaries, could make the appointment; but he took it that it did not necessarily imply that the heirs and beneficiaries were desirous of opposing the probate of the will.  It might be that they were in favour of the probate of the will.  It was one thing to have a client and another thing to act in accordance with the instructions given by that client.  The mere fact that he was retained for a client did not mean that he was to take any line of action he thought proper without consulting his client; and if the heirs and beneficiaries had not sent out instructions it was not competent for his learned friends to strike out a line of action for themselves without authority from them.,

   The COURT - If by reason of the situation and the circumstances of the distance between the estate and the heirs, the heirs chose to appoint anyone to represent then to further their interests, I think they have a right to do so, and the person they so appoint stands in their stead.  They repose their confidence in him and trust to his exercising it in a judicious manner.  I think an attorney appointed in that way has full authority to come forward and raise any objections, which in his sound judgment he thinks are proper objections, the same as if the heirs themselves were present.

   Mr. WAINEWRIGHT said if that were so, he must ask the Court to take a note of his objection.

   The COURT consented to do so, and asked Mr. Wainewright to draw up the exceptions he had made in writing.

   Mr. WAINEWRIGHT said he would do so, and submit them to the Court during the day.

   Mr. HENDERSON next claimed that the objections to the petition should be disposed of before the petition was heard.  The objections were, he said, in the nature of a demurrer.

   Mr. WAINEWRIGHT submitted that being the petitioner he was entitled to begin, and then it was for the other side to raise their objections to what he advanced.  There was nothing now before them, and he asked, as the petitioner, to lay his case before the Court.  Then the objections could be made and he could answer them.  To try to make the objections equivalent to a demurrer was, in his opinion, quite irregular.

   Mr. HENDERSON pointed out that if the Court held the objections to be good, the matter was at an end, and they need not waste time by going into the details of the petition.

   The COURT thought the objections were more in the nature of a motion, and a motion was always heard before the case was proceeded with.

   Mr. DRUMMOND said this was an interlocutory proceeding.

   Mr. WAINEWRIGHT thought the petitioner was placed at a great disadvantage - he was in the position of plaintiff, and there was somebody else wished to be defendant and had raised certain objections.  He submitted that the plaintiff was entitled to begin and to try to make out a prima facie case to the satisfaction of the Court.

   Mr. HENDERSON maintained that it was the invariable custom in the United States for all objections to be first disposed of.

   Mr. DRUMMOND repeated that this was an interlocutory motion, the necessity for which had been brought about by the action of the party appearing for the petitioner.  He thought it would be most properly and regularly dealt with by Mr. Henderson opening on the objections filed, then for Mr.  Wainewright to reply, and he himself concluded the argument.

   Mr.  WAINEWRIGHT strongly submitted that such a course imposed great hardships on the petitioner, and contended that until the facts were before the Court - all the evidence given - the Court could not listen to the objections.

   The COURT ruled that it was quite regular to proceed with the objections.  At was the course pursued by the Courts at Home, where he had never known the practice to be otherwise.

   Mr. HENDERSON then proceeded with his argument in favour of the objections to the petition.  It seemed to him that the objections were such as not to require the support of authorities - they were so plain and apparent, so indispensable to the administration of justice.  But he should produce some authorities and make some points, or try to do so.  He did not think it necessary to read the petition, but to make our report complete it was as follows:-

The petition of John Petrie Bisset, a British subject residing in Great Britain, humbly sheweth:-

  1. - That Edwin Maurice Smith, a citizen of the U.S. of America, late of Shanghai in the Empire of China, but who at the time of making his last will and testament hereinafter mentioned was temporarily residing at the Charing Cross Hotel, in the county of Middlesex, in England, gentleman.  Deceased died on the 19th day of November, 1878, at Shanghai aforesaid, having made and duly executed his last will and testament bearing date the 1st day of October, 1870, and thereof appointed Thomas Hanbury and your petitioner the executors.
  2. - That by an instrument in writing under his hand and duly acknowledged, the  said Thomas Hanbury did, on the 4th day of March, 12879, declare that he had not intermeddled in the estate and effects of the said deceased, and would not thereafter intermeddle therein with intent to defraud creditors or otherwise, and did thereby renounce all his right and title to the probate and execution of the  said will and to all power, profit, right and authority granted to or conferred upon him by his appointment as an executor thereof.
  3. - That on the 8th day of March, 1879, the s aid will of the said EE. M. Smith, deceased, was duly proved by your petitioner in H.B.M's High Court of Justice in England, the value of the personal estate of the said deceased in England being sworn to be under the sum of £3,000 sterling.
  4. - That the s aid E. M. Smith, deceased, died seized and possessed of a large amount of real and personal estate in Shanghai aforesaid, the said real estate being estimated to be of the value of 625,000 Shanghai Taels or thereabouts, and the  said personal estate being estimated to be of the value of 31,000 Shanghai Taels or thereabouts.
  5. - That none of the heirs of the said E. M. Smith, deceased, and none of the devisees or legatees under his said will are resident in Shanghai aforesaid or elsewhere within the jurisdiction of this Honourable Court.
  6. - That your petitioner is desirous that the said will of the said E. M. Smith, deceased, shall be admitted to probate and recorded in this Honorable Court, and that letters testamentary shall be issued thereon to him, your petitioner.

   Your petitioner therefore prays that the said will may be admitted to probate and recorded, and that letters testamentary may be issued thereon accordingly.  And you petitioner will ever pray.

   Mr. HENDERSON then read his objections to the petition as follows:

  1. - That upon the facts disclosed, the petitioner is not a competent party to obtain probate and letters testamentary, as prayed, he being an alien and residing outside of the jurisdiction of this Court.
  2.  - That this Court is the only Court of original jurisdiction for granting probate of the will in question.
  3. - That the petitioner is named in the will set out as trustee and executor, and as appears by the petition id legally incompetent to act as such.

   The main facts, he said, as  set out in the petition were these:-

  1. - The testator was a citizen of the United States domiciled in Shanghai at the time of his death.
  2. - That the petitioner is a British subject now residing in England.
  3. - That the Attorney for the petitioner, who appears and makes  this application, is also a British subject, and consequently beyond the jurisdiction of the U.S. Court.
  4. - The application is supported by an exemplification of probate granted in England.
  5. The estate in now in the custody of this Court by authority of the laws of Congress and the treaty with China.

These were the cardinal facts upon which the objections were based.  The petition, he took it, asked for two things to be done - first, that the will may be admitted to probate, and, second, that letters testamentary may be issued thereon.

   He denied the petitioner's  right to either of these requests.  First, as to the right to have the will admitted to probate on the grounds of his application.  The rule is that the Court having exclusive primary jurisdiction of the will is the Court of the place in which the testator was last domiciled.  The testator was a citizen of the United States, residing at Shanghai at the time of his death.  The Court then had primary jurisdiction of the probate of his will.  In support of this proposition he cited Leonard v. Putman, 12 American Reports, page 106; Miller v. James, 5 English Reports, page 502, which cited L.J., 3 Probate and Divorce, page 4.

   But the application was based on what purported to be an exemplification of probate in England.  This might, according to some authorities, be ground for a new probate if England were the place of original jurisdiction in probate.  The fact that the testator was temporarily residing at London when the will was made was of no legal consequence - he was then domiciled in Shanghai, and the property bequeathed was in Shanghai also, and the will itself consequently must be presented to this Court for original probate.  Further, the application for probate must be made personally and the applicant must be amenable to the jurisdiction of this Court.  The petitioner might as well be in Rome, or St. Petersburgh, or Africa, so far as the responsibility to this Court was concerned, as where he is; he was not only absent from Shanghai, but he was absent from China, and on account of his nationality, and the peculiar arrangement with reference to the jurisdiction of foreigners, he would not be any more amenable to the orders of this Court of he were present in Shanghai, for the jurisdiction of foreign Courts in China was only a personal jurisdiction limited to citizens or subjects residing here.  Next, the Attorney for the petitioner was not even himself amenable to the jurisdiction of this Court.

   Mr. WAINEWRIGHT - I represent Mr. Bisset just as you represent the heirs and beneficiaries.

   Mr. HENDERSON went on to explain that the Court could not enforce an order against Mr. Wainewright.  He was not speaking of the Attorney for the petitioner in his capacity at the bar, but as an attorney in fact.   Then the petitioner's application was based upon his nomination in the will as trustee and executor.  If he was legally incompetent to execute either of these offices, it followed that he was not entitled to have probate granted on his application.  That the petitioner was legally incompetent to hold the office of either trustee or executor, he should show in considering his right to letters testamentary under the alleged will.  The testator was a citizen of the United States, residing at Shanghai at the time of his death, and the petitioner was a British subject residing in England.  The estate willed was situate in Shanghai and was now actually in the care and custody of this Court for administration and Settlement.  These facts alone, he maintained, rendered the petitioner legally incapable of holding either the office of trustee or executor of the estate.

   A person beyond the jurisdiction of the Court could not act as an executor of a will disposing of property under its jurisdiction and in its preservation.  In support of this contention he cited Williams on Executors and Administrators, page 520.  This was the Common Law at the time of the revolution, and it was the law of today both in England and the United States.  He also cited Williams's 7th edition, pages 228, 229, 292, 362, and 370.

   He then went on to say that the petitioner was named in the  will set up in the exemplification, filed with his petition, as trustee and executor, with power to deal with the realty, so that to grant him letters testamentary would give him the sole management and control of the estate. Admitting the will to probate, therefore, and then, in addition, granting letters testamentary, would be equivalent to handing over to him the sole management of the estate.  By all authorities a person beyond the jurisdiction of the Court was legally incapable of being a trustee - Perry on Trusts, pages 38, 39, and 55; Lewyn on Trusts, pages 27, 33, 34, and 35, 5th Edit; and 6th Ed., pages 228, 36 and 37.

   If the petitioner was able to act and was in office in the United States and should remove his domicile or national status, he would be removed because not amenable to the jurisdiction of the Court - Perry on Trusts, pages 275, 276, and 818.  This rule was founded on no less a reason than necessity itself - the necessity for protecting estates in trust from destruction at the hands of those appointed to manage and care for them for those entitled to the benefits.  Without it no decree could be entered or enforced again the trustee for breach of trust, or to compel an account to the cestui que trust, or the execution of any conveyance, or to prevent waste, or even the appropriation, alienation, or embezzlement of the estate - things too often done by trustees under the pressure of poverty and the delusiveness of hope for ability to replace the funds before the return of accounting day. It could enforce no order or decree whatever against the trustee, and it would be equivalent to giving up all care or protection over the estate and abandoning it to its fate.

   There could be no higher duty, or one requiring greater care in its exercise, than the duty of Courts to protect and preserve estates left under their supervision for those beneficially interested in them.  Under the treaty and laws of the United States, the powers of this Court were ample for the purpose, and it was in duty bound to exercise them for the best interests of the estate, but its jurisdiction did not extend over British subjects residing in Shanghai, and certainly not over those residing in England.

   It was true that Courts of equity, in considering the suitability and capability of a trustee, had regard to the wishes of the testator, but this only applied where the testator had regard for the law in disposing of his estate, and if he bequeathed his property in contravention of the law his will would not be entertained, and in the same way if he appointed a person as trustee or executor who was legally incompetent the Courts would not enforce the provision.

   If petitioner was in office he could not sue or be sued in any other Court, and a conflict of jurisdiction and confusion would be the result.  In view of the many complications and embarrassments surrounding this estate, of which the Court had knowledge, including a great number of claims, some of them involving conflicting questions of law, it was especially incumbent on the Court to see that nothing was doe to prejudice the estate, and if the Court granted this application it would produce a conflict of jurisdiction, great confusion, and embarrassment to the estate, and result in no good whatever. This Court had already jurisdiction in the matter, and according to all rules of law no other Court could interfere.

   But the question was not one of jealousy as to this Court continuing to administer the estate, it was whether the Court, having the lawful possession and supervision of the estate, in pursuance of its Consular as well as of its probate and equity powers and duties, the responsibility for its faithful and safe management and preservation, would hand it over to the control of a person who, by his own petition, showed himself legally incapacitated from taking it, and who would be utterly irresponsible to the Court for his action?  Would the Court, in the face of all these objections, contrary to all law and precedent, with the power and the duty to preserve and protect the estate, deliberately place it, or permit it to be carried forever beyond the reach of its protecting hand.  He apprehended the Court would do no such thing, and with these observations he would leave the matter at present.

   Mr. WAINEWRIGHT asked the court to afford him an opportunity of reading over the authorities which had been cited.  They had not been read, and he should like to glance them over before he replied, and would ask for an adjournment to enable him to do so.

   Mr. HENDERSON and Mr. DRUMMOND did not oppose an adjournment.

   The COURT thought in a question of this magnitude, every opportunity should be afforded to all parties to ascertain the law bearing on it, and he would allow an adjournment.

   The COURT then adjourned until nine o'clock this morning.

20th May.

    Mr.  WAINEWRIGHT appeared for the petitioner, applying for probate of the will and letters testamentary.

   Mr. DRUMMOND and Mr. HENDERSON represented the heirs and beneficiaries, and opposed the petition.

   The argument in the case, adjourned from Monday, was resumed today.

   Mr.  WAINEWRIGHT proceeded to address the Court in opposition to the objections raised against granting probate of the will. The objections, he said, according to Mr. Henderson's argument, were based on five principal facts, namely,

  1. - That the testator was a citizen of the United States domiciled in Shanghai at the time of his death.
  2. - That the petitioner is a British subject now residing in England.
  3. - That the Attorney for the petitioner, who appears and makes this application, is also a British subject, and consequently beyond the jurisdiction of the U.S. Court.
  4. - That the application is supported by an exemplification of probate granted in England.
  5. - That the estate is now in thee custody of this Court by authority of the laws of Congress ands the treaty with China.

   In reference to the first point, he submitted that though the word "domiciled" was used in the petition, there was no evidence that the testator was domiciled, in the legal sense of the term, in Shanghai; he certainly had resided in Shanghai, but it was doubtful whether he could acquire a domicile here.  The testator was said to have been born in the United States, and there was nothing to show that he had lost his original domicile in a legal sense.  The question as to this Court being the only Court of original jurisdiction for granting the probate of the will, was one for argument and not of fact - it was a question of the general construction of law.

   The third point he must confess he did not quite understand - that the attorney for the petitioner was a British subject, and consequently beyond the jurisdiction of the Court.  What that meant he was at a loss to understand, but if his learned friend wished to convey the idea that all suitors in this Court must be represented by barristers or solicitors who were citizens of the United States, it would no doubt be a very comfortable doctrine for him if worked out, but he thought it was a doctrine the Court would not sustain.  He was present in no different relation to his client than his learned friends on the other side to theirs, if they were instructed.  He appeared under a written retainer to support the petition, which he signed in his capacity of Attorney as he signed petitions frequently, and he failed entirely to see the force of the objection.

   He merely read the other two facts raised by the petition, and then analysed the authorities cited by Mr. Henderson in support of his contention that this Court had exclusive primary jurisdiction of the probate of the will, placing great stress on the opinion expressed by Sir James Hannen in the case of Miller v. James, that a will proved in a foreign Court the Courts of England would admit to probate here without further proof. Rule 55 of the regulations governing the practice of the Court set forth that in the probate of wills, &c., the Court was to proceed according to reasonable rules not repugnant to the law of the United States, and he asked the court to follow what he conceived to be the procedure and practice of the State of California.  According to the law of that State and the laws of the majority of the States in the Union, this will could be admitted to probate as having been proved in a foreign country by a Court of competent jurisdiction.  There was an advantage in following the procedure and practice of the State of California because the Circuit Court there was the Court of Appeal from this Court.

   In support of his contention that the will could be admitted to probate, having been proved in a foreign country by a Court of competent jurisdiction, he cited the 27th section of the Probate Act of California, which is Section 5,725 of the general laws of that State.  Then he quoted "Thornton on Conveyancing" to show that a similar provision, almost identical in terms, was to be found in the laws of the majority of the States of the union, the names of which he gave, maintaining that this Court could apply it to the present case. That was the law on which he based his application.

   He next proceeded to deal with the objections made to the application for the probate of the will, and first called attention to the fact that the title of executor was mot derived from the Court that granted probate but from the will itself, and it was a strong measure of the testator's wishes.  As proof that the petitioner was not disqualified, he cited authorities and explained that the English law on the point was this, that the only ground upon which the Court would ignore the common law right and refuse probate to an executor residing abroad was that there was an Act of Parliament passed in 1857 which enabled the Court to do so if it thought it desirable or convenient.

   He reviewed the authorities cited against him, maintaining that the greater number of then did not apply and that those that did did not support the proposition they were cited to support.  In this case the testator made his will, - and there was no imputation that he was not in the full enjoyment of his faculties at the time - and he appointed two gentlemen to be his executers, and continued their appointment up to the time of his death, notwithstanding that they had both left Shanghai, and died leaving them his executors.  Under such circumstances he submitted a very strong case must be made out for the Court to disturb the wishes of the testator and say that the two persons he had appointed were not capable of taking the executorships. Even supposing the law was as Mr. Henderson had stated it to be, that an alien could not be the executor of the will of an American citizen, he would point out two things.  In the first place the Court had never heretofore held that to be an obstacle to the granted probate of a will - the fact of the executor being a British subject, beyond the jurisdiction of this Court, had not hitherto been a bar to probate.  He would draw attention to the cases, the records of which would be found in the archives of the Court. 

   First, there was the case of a testator named Spedding, who made a will dated 4th April, 1872, who appointed a British subject his executor, and probate of that will was granted by the Court, presided over by Mr. Seward, in 1874 - the testator died in March, 1874, and the will was proved on the 9th April, 1874, and probate was allowed by Mr. Seward. 

   The other case was that of the estate of William T. Kirby, where probate was allowed to two executors who were British subjects, Robert Mackenzie and Captain Murray.

   These were two cases within his own knowledge, and he had no doubt the Court would be able to find others in which the Court had recognised the right of an alien to probate, and for very obvious reasons. It would inflict great hardship on American citizens if their choice of an executor was limited to the comparatively small mummer of fellow citizens of the United States to be found in China.  The number of citizens was small, and it was difficult to find men to take executorships, and the limitation sought to be applied would increase the difficulty to a large extent. He mentioned this to show that the Court had not only allowed an alien to be an executor legally, but also, perhaps, on the grounds of public policy, which was a sound policy, and had not thought it necessary to enforce a strict and technical law, if such a law existed.  If this Court was going to adopt a rigid rule, which would be a great hardship to the public, Mr. Knight at once had better be made Receiver General, and Mr. Henderson, Attorney General.

   He thought he had now shown that the law of the majority of the States of the Union would admit this will to probate it having been proved in a foreign country by a Court of competent jurisdiction; and that he had also proved that the executor, in the eyes of this Court, was not disqualified because he was not under the jurisdiction of the Court.

   Next, as to the question of convenience.  On this point he did not think Mr. Henderson wished to insinuate that the executor, if the will was admitted to probate, would not be amenable to a very competent and powerful Court.  The executor was, of course, amenable to a Court of equity, through the channel of which anybody who had anything to claim from him had the opportunity of claiming.  As to convenience, there were heirs and beneficiaries residing in America who were entitled to  four-and-a-half tenths of the estate, and there were heirs and beneficiaries living in Europe entitled to five-and-a-half tenths, and there was one tenth breathed to heirs in China, making eleven-tenths breathed altogether (laughter), The heirs and beneficiaries living in America and Europe would be better off if the executor was living in London instead of in Shanghai, therefore what had been said about convenience by the other side entirely fell to the ground.

   He would also call the attention of the Court to the fact that the heirs and beneficiaries represented by Mr. Henderson had forfeited all their interest under the will.  He then read a clause in the will providing that if any person named therein should endeavour to dispute its stipulations, they should forfeit all their interest under it; so that all the services his learned friends had rendered to their clients by trying to disturb the arrangement the testator had made as to the executorship, was to bring about a forfeiture of all their interests under the will.  How that would be would have to be considered hereafter, but he submitted that there were no grounds, either in law, or policy, or convenience, or otherwise for this Court to refuse probate to the executor under the will, if it acted upon the common law and upon what had been the practice of the Court hitherto, and in accordance with what was consistent with the practice of the Courts in the majority of the States of the union; and, therefore, he asked the Court to disallow the objections and allow him to proceed to the probate of the will.

   Mr.   DRUMMOND replied at considerable length, elaborating the points raised by Mr. Henderson.  They were not objecting to the probate of the will, but they objected to it being granted to Mr. Wainewright or the person he represented.  It might be that they themselves apply for the probate of the will some time or other if the present petition was not granted.  He contended that a great deal of extraneous matter had been introduced into the argument, which might well be eliminated, the simple question being whether the petitioner was entitled to the probate of the will and letters testamentary upon the statements and proofs he had put in - whether any other person was entailed to the same, had nothing to do with the present issue.  Representing the heirs and beneficiaries there was a distinct responsibility resting on Mr. Henderson, and when the petition was filed, in the performance of the duty cast upon him, he found it necessary to lay before the Court certain arguments and authorities applying to the state of facts put forward, with the view to establish, to the satisfaction of the Court, that the petitioner was not entitled to have what he asked for.  It was not necessary to consider the question of personal interests one way or the other, or the consequences which might arise by an abuse of the powers granted - it was not necessary to balance the probabilities between wither party one way or the other, in reference to this phase of the case.  He maintained that it was not the law of any particular state but the Common Law by which the case must be decided, and in his opinion the objections raised to the partition musty be sustained by the Court.

   The COURT reserved its decision.

 

Source: The North China Herald, 3 June 1879

UNITED STATES CONSULATE-GENERAL.

Shanghai, 29th May.

Before D. H. BAILEY, Esq., Vice-Consul General, and E.  W. RICE and C.  J. ASHLEY, Associates.

PHILIP K. DUMARESQ and DAVID WELD v. FRANCIS PARKMAN KNIGHT.

   The COURT said this was an application on the part of the appraisers in the estate of Edwin Maurice Smith for compensation for making an inventory and appraisement of the estate.  He had thought it best to have Associates to sit with him in fixing the amount of compensation to be allowed, and Associates had accordingly been subpoenaed and were in attendance, and they would now be sworn.

   Messrs.  E.  W. RICE and C. J. ASHLEY were then duly sworn as Associates.

   The COURT understood the total amount asked for by the appraisers was Tls. 2,626.52.

   The APPRAISERS said that was the amount.

   The COURT said it was now for the appraisers to introduce any evidence they might have as to the amount of compensation that should be allowed them.

   Mr. DUMARESQ and Mr.   WELD expressed their willingness to be sworn if it was necessary for them to be examined; and Mr. Dumaresq explained that he had asked Mr. Wheelock to attend to give evidence.'

   The COURT thought it would perhaps be better, before proceeding with the evidence, to have the petition and answer read.

   Mr.  DUMARESQ           then read the petition of the plaintiffs, which was as follows:-

  1. - That they are respectively citizens of the United States, residing in Shanghai.
  2. - That the defendant is a citizen of the United States, residing within the jurisdiction of this Court, and is receiver appointed by this Court of the estate of Edwin Maurice Smith, deceased, citizen of the United States, late of Shanghai, and who died at Shanghai on the 19th day of November, 1878.
  3. - That by an order of this Court made in the matter of the estate of the said E. M. Smith, deceased, on the 17th day of December, 1878, the plaintiffs were appointed to make an inventory and appraisal of the effects of the  said deceased, and to return the same to this Court, in writing, under oath.
  4. - That the plaintiffs, in pursuance of the  said order, have made such inventory and appraisal, as in the said order mentioned, and in the making thereof have expended much time and labour, and they have returned such inventory and appraisal to this Court in writing under oath, as directed by the said order.
  5. - That according to the said inventory and appraisal, the total value of the personal property of the deceased is the sum of Tls. 31,6903.17, and the total value of the real estate of the said deceased is the sum of Tls. 627,818.98
  6. - That no agreement has been come to or order made with reference to the remuneration or compensation of the plaintiffs in respect of their said employment, but that each of the plaintiffs have received from the defendant the sum of Tls. 364.50 on account.
  7. - That the remuneration claimed by each of the plaintiffs is at the rate of 5 per cent on the value of the said personal property, and one-sixth of 1 per cent on the value of the said real estate, making for each a total sum of Tls. 2,626.52 as follows-

Value of personal property,

Tls. 31,603.17 @ 5%     =   Tls. 1,580.16

Value of real estate,

Tls. 627,818.98 @ 1/6 %=Tls. 1,046.36

 

Total                                     Tls. 2,626.52

  1. - That after deducting the said sum of Tls. 364.50, so as aforesaid already paid to each of the plaintiffs, there remains the sum of Tls/. 2,262.02 as the value which each of the plaintiffs claim.

   Your petitioners therefore pray judgment may be given against the defendant accordingly, and that they may have such further and otter relief as to your Honorable Court may seem meet.

   Mr. HENDERSON then read the answer, of which the following is the substance:

   For answer to the petition, the defendant admits that he is receiver of the estate of Edwin Maurice Smith, deceased, but denies that he is responsible as such officer to the plaintiffs for the amount claimed by them in their petition. He also admits that the plaintiffs were appointed by the United States Vice-Consul General to make an inventory and appraisement of the effects of the deceased, and says this was done under the laws and Consular regulations of the United States.

   He denies that the services performed by the plaintiffs, under the said appointment, are worth any such sum as the plaintiffs claim therefor, and alleged that five dollars per day is the usual and proper allowance for such services in other cases, as he is informed and believes. Defendant also alleges that the Vice-Consul general has been, and is willing, as plaintiffs well know, to allow plaintiffs a reasonable and sufficient compensation for the work performed by them under the said appointment, and that the attorney for the said estate has consented to an allowance of double the usual sum paid for making the inventory in such cases, as the plaintiffs also well know.  In order to avoid litigation and annoyance, defendant was willing and ready to consent to an order being made, allowing plaintiffs the sum of Tls. 10 each per diem for the time actually and necessarily employed in making the inventory.  Wherefore the defendant prays that the plaintiffs' petition may be dismissed with costs.

   Mr. HENDERSON thought that on behalf of the estate they had strained the point in offering the allowance they had, which was more than they were justified in offering, except under extraordinary circumstances.

   The COURT said certainly a great deal of work had been done by the appraisers, and it had been done thoroughly and well; and the sole question to be considered by him and the Associates was what would be a reasonable allowance under the circumstances.

   Mer. HENDERSON coincided with the remarks made by the Court, but said he presumed the amount to be allowed would be determined according to the law bearing on the case, if any such law was produced.

   The COURT then asked Mr. DUMARESQ of mr. WELD had antyhigfb to say in support of their claim.

   Mr. DUMARESQ said he and Mr. WELD had drawn up a short statement which he would read. He then read as follows:

In presenting our petition for a settlement of our claims for remuneration for our services as appraisers of the estate of the late Edwin Maurice Smith, we think it necessary and proper to supplement the plaint therein set forth by a short statement of the circumstances of our appointment, and of the character, as well as the extent of the work we were called upon to perform.

   The day following the date of our appointment I called upon your Honour with reference to a remark which had reached me, that the remuneration we were to receive would be at the rate of $5 per day, and I then informed your Honour that I could not waste my time for any such consideration, and that I was authorised by my co-appointee to express the same decision on his behalf - that my business as broker could not be lightly interrupted, and that proper attention to the labours proposed would necessitate an entire temporary relinquishment of my business, which at the time brought me in considerable sums of money in a day.

   Your Honour informed me that there was no foundation whatever for the remark, and that the Court would use its discretion in determining the amount of remuneration, and would be guided by the character of the work performed, the time occupied, the value of the estate, and the custom of the place with reference to such work.

   As to the first consideration, the character of the work performed, it is hardly necessary to do more than point to the condition in which the estate was found when we entered upon our duties - of the almost hopelessly entangled confusion of the enormous quantity of ornaments, furniture, clothing, jewellery, books, pictures, building material, etc., which completely filled his dwelling house, godowns and unoccupied houses; the entire absence of books of account or record; the withholding by mortgagees of his title deeds; and the mass of private papers and memoranda which filled sixteen boxes, including two or three large packing cases, over all of which we were compelled to make a careful search for assets or information leading to their discovery.

  The labour of arranging the goods and making the inventory and appraising his personal effects, searching the records for the discovery of his real estate, making an inventory and appraisal thereof,  and carefully searching the mass of papers and documents contained in the sixteen boxes referred to, occupied our individual attention for nearly three months, during which time we seldom relinquished our daily labours until we passed a couple of hours by gas light, in order that we might make a return of our report with as little delay as possible.

   As to the second consideration, the time occupied, I have already stated, it was nearly three months, during which we gave our undivided attention to the work.

   As to the third consideration, the value of the estate, I think it cannot be considered that a charge of less than one per cent - eight-tenths of one per cent - on the total value of the real and personal property is more than reasonable under the circumstances.

   As to the fourth consideration, the custom of the place with reference to such work, we have made careful inquiries of parties whose business it is to appraise property, and we find that the charge made for the bare work of appraising, which does not include the personal arrangement in inventorying, searching of records and papers, are the same as those we have made, and the time occupied for such work, done as we have done it, is largely in excess of that which would be devoted by an appraiser of an ordinary estate.

   It is not to be forgotten that where assets are doubtful in the slightest degree, such, for instance, as Continental, State, and other bonds, life insurance policies, &c., we have not included them in the valuation upon which we have made our charges, although we have every reason to believe in their actual existence.

   It does not appear to us to be necessary to further advocate the propriety or reasonableness of our claim, which we believe rests on fairness and equity, and not upon legal points, and with this explanation we are content to leave it to your honour and the gentlemen who are associated with you, regretting that out earnest desire to prevent publicity in this matter, by having the question submitted to private arbitration, was so strenuously opposed by the Counsel for the defence, and which was a course, we believe, to be as fair to the estate of Mr. Smith as to ourselves.

   He (Mr. Dumaresq) did not think he need add anything to the foregoing statement, as he had understood his Honour to say it was merely a question of fairness and equity, and that the rule of an allowance of $5 per day had no application in this case, consequently he had come into Court without a layer, thinking that legal knowledge was not necessary to a determination of the issue.  This estate was vastly different to an ordinary one, and he thought the charges they had made both as regards the personal and real estate were reasonable and proper and in accordance with the custom of the place.

   They had done all in their power to prevent the matter coming into Court, but it was impossible for them to come to an arrangement.

   The COURT thought it should not be considered disagreeable to come into Court to present the claim.  It was the custom and practice to do so in all such matters in the United States; and it was only a question as to the reasonableness of the demand made.

   Mr. DUMARESQ   said he had been in China a long time and had forgotten the Custom at Home to some extent.  Chinamen did not like to go into Court, and perhaps he had become imbued with their feeling, and much preferred that the matter should have been amicably settled out of Court.

   In answer to the Court, Mr. WELD said he had nothing to add to the remarks of Mr. Dumaresq, who laid the case fully and fairly before the Court.

   Mr. T. R. WHEELOCK was then called and examined by Mr. Dumaresq.  He deposed that he had appraised a good deal of furniture and personal property in Shanghai, the charge for which had always been five per cent.  He had never charged less.  He could name some estates in which his charge was five per cent., namely Messrs. Dent and Co., Hogg Brothers, Glover, Dow and Company, and a great many others.  As to the charges for appraising real estate he had no knowledge.

   Mr. DUMARESQ said he had no evidence to produce as to the charges for appraising real estate.  He was willing to accept the testimony of the witness Mr. Henderson was going to call, having spoken to him on the subject.

   In answer to Mr. Henderson, Mr. Wheelock said he had had sixteen years experience in appraising personal estates.  The fee of five per cent was the usual professional charge in Shanghai.

   It was agreed that the statement read by Mr. Dumaresq should be admitted as evidence.

   Mr. H. LESTER, architect, surveyor and estate agent, was next called and examined by Mr. Henderson.  He deposed that at the time of Mr. E. M. Smith's death he had a rough idea as to the value of his real estate, having managed it, and he had heard the amount it had been valued at by the plaintiffs.  He was accustomed to appraise real estates.  That was essentially his business, and he had been engaged in it sixteen years in Shanghai, and also before he came here.  Being a professional appraiser of real estates, he objected to give an off-hand value of Mr. Smith's real estate, not having gone into it.  He objected to say whether the valuation put upon it was a higher one or not.  He might have said in course of conversation that it was rather high.  He did not bethink it was fair to ask him unless he was professionally asked to do so and an opportunity was afforded him into go into the matter.

   Mr. HENDERSON did not care to press for answers.

   The COURT said probably Mr. Lester would not object to stating the fees for appraising real estates.

   Mr. LESTER, in reply to Mr. Henderson, said the customary charge for the appraisement of real estates in Shanghai was one-half per cent for estates under Tls. 10,000; three -eighths per cent for estates between Tls. 10,000 and Tls. 25,000; and a quarter per cent for estates between Tls. 25,000 and Tls. 50,000, and for estates over Tls. 50,000 it was always a matter of arrangement, because there was not more proportionate trouble with a large estate than with a small one.

   Mr. WELD asked whether in England there was not a sliding scale of fees for estates over Tls. 50,000.

   Mr. HENDERSON objected to the question, saying they were not now in England but in Shanghai.

   In reply to Mr. Dumaresq, Mr. LESTER explained that Mr. Smith's real estate was scattered over the Settlement, some on the Yang-king-pang, some in the Maloo, and some at Louza, therefore his remark as to there being little more trouble in appraising a large estate than a small one would not altogether apply in this instance.

   Mr. LESTER, in answer to the Court, said the real estate of Mr. Smith was worth Tls. 400,000.  He felt certain it was worth that amount, including the bonds and everything.  He would not like to say how much more it was worth unless he went into the matter carefully.

   Mr. HENDERSON said Mr. Lester had had opportunities for knowing the position and extent of the estate better than any bother man in Shanghai, having managed it for Mr. Smith.

   Mr. LESTER said he had managed the estate, but he had never valued it professionally.  When he said it was worth Tls. 400,000, he included the bonds but not the personal property.

   Mr.  WELD said they had not included the bonds in the estimate on which they had calculated their claim.

   Mr. HENDERSON remarked that they had not been able to get the parties who had the custody of the bonds to tell them anything about them.  He next asked Dr. Latham, the Clerk of the Court, to state from the books and records of the court, and  from his personal knowledge, what the usual charge for making appraisement of the property of deceased American citizens was.

   Dr. LATHAM was then s worn and  deposed that in the cases that had come under his personal noticed, the fee had been $5 per day, and from the official Court cash book he had policed that invariable the charge had been $5.  He mentioned several cases in which this fee had been charged.

   Mr. HENDERSON next asked for a letter he had written to the Vice-Consul offering the plaintiffs double the usual allowance of compensation, which was on the records of the Court, to be produced as evidence.

   The letter was accordingly admitted.

   This completed the evidence on both sides.

   Mr. HENDERSON then addressed the court, remarking that the plaintiffs were appointed under the 1,709 section of the Revised Statutes of the United States, directing Consular officers to take charge of the personal effects of deceased American subjects, and the regulations of the Department of State ordered an inventory to be made.  Unquestionably under these instructions it was simply a duty performed by the direction of law and in pursuance of the regulations of the State department, but in the regulations there was only the personal effects contemplated, so that an appraisement of the real estate was not absolutely necessary, and it might have been done through inadvertence, or, perhaps, it was the result of a clerical error.  Neither the law nor the circumstances of the case, he thought, would justify the Court in allowing  a higher compensation than had been already offered; and in his opinion it would establish a precedent which would be found to operate very awkwardly if compensation were allowed, based on a percentage of the valuations.  He pointed out that as regarded the plaintiffs' valuation of the deceased's personal property, it was double the actual amount realised by the property when sold at auction; and in reference to the real estate the Court had heard the evidence of Mr. Lester as to the fees usually charged by professional appraisers, and the plaintiffs were not professionals.

   Mr. DUMARESQ, in reply, pointed out that at the time he and Mr. Weld were appointed, he asked the Vice-Consul General whether their appointment referred to the real and personal estate.  The Vice-Consul General replied "everything," and said this was not an ordinary estate.  He thought there was nothing indefinite, or the least misunderstanding on that point.

   The COURT said it was important to have an inventory of the whole estate to transmit to Washington.

   Mr. DUMARESQ said, as to the compensation offered, Mr. Henderson thought it was a very fair offer.  But it always took two parties to make a bargain, and he and Mr. Weld thought it was an unfair offer, and they appealed to the Court to decide whether they did not merit more consideration for the work they had done.  Then, in answer to what Mr. Henderson had said as to their valuation of the personal property being a high one, he wished to remind the Court that about Tls. 8,000 worth of the property had not been sold - building material and the furniture in tea-ships, &c.  They had been very careful in valuing both the personal and real estate, and he ventured to say that it would be found to be undervalued rather than over-valued.

   The COURT, after consultation with the Assessors, said the case would be taken under advisement, and the parties would be notified when the decision would be given.

 

Source: The North China Herald, 24 June 1879

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 17th June.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge,

and E.  W. RICE and C. J. ASHLEY, Associates.

Messrs. P. K. DUMARESQ and D.  WELD

v.

F. P. KNIGHT,

Receiver of the Estate of EDWIN MAURICE SMITH.

   This case was before the Court on the 29th May.  The Court took time to consider its decision, and today delivered the following

Judgment:-

   The COURT said - The claim in this case, for compensation in making an inventory and appraisal of the estate of the late Edwin Maurice Smith, is Taels 5,253.04, being at the rate of 5 per cent on the value of the personal property and one-sixth of one per cent on the real estate.

   The statute does not fix the sum to be allowed for such service - the rule, therefore, must be on the quantum meruit.

   In my view Taels 1,000 each would be a reasonable compensation, but that view is not inflexible, and as the Associates are of the opinion that the sum should be somewhat larger, we have agreed to fix the compensation at 2 ½ per cent on the personal property, and the sum of Taels 400 each on the real estate, making the compensation allowed to each to be Taels 1,190.08, and judgment will be entered accordingly.

   I fully recognise the thoroughness, the faithfulness and the value of the plaintiffs' services in the matter of the inventory, &c., &c., but I cannot bring myself to think that the full amount of their claim should be allowed, and the Associates are of the same opinion.

 

Source: The North China Herald, 12 August 1879

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 11th August.

Before D. H. BAILEY, Esq., Consul-General, sitting as judge.

In re Estate of EDWIN MAURICE SMITH.

   Mr. R. E. WAINEWRIGHT appeared for the petitioner.

   Mr. J. J. HENDERSON and Mr. W. V. DRUMMOND appeared for the estate, heirs, and beneficiaries.

   This case was argued on the 19th and 20th May; and today the court delivered the following

Judgment:-

   The COURT said - This is an application by John Petrie Bisset, a British subject, residing in Great Britain, for probate of a will of Edwin Maurice Smith, deceased, a citizen of the Unsuited States, late of Shanghai, and that letters testamentary may be issued thereon to the  said John Petrie Bisset.

   The petition avers, in addition to the facts above stated, that the said Smith made and duly executed his last will and testament bearing date 1st October, 1870, and thereof appointed Thomas Hanbury and the petitioner the executers and trustees, and that while making the said last will and testament, the said Smith was temporarily residing at the Charing Cross Hotel, in the county of Middlesex, in England; that said Smith died in Shanghai on the 19th day of November, 1878; that the said Thomas Hanbury, by an instrument, in writing, duly executed, renounces his right and authority to act as an executor of  said will; that on the 8th day of March, 1879, the said will was duly proved by the petitioner in H.B.M. High Court of Justice in England, the value of the personal estate of the deceased in England being  sworn to be under the sum of £3,000 sterling; that the  said E. M. Smith died, seized and possessed on real estate situate in Shanghai, valued at 625,000 Shanghai Taels, and personal estate in Shanghai valued at 31,000 Shanghai Taels; that none of the heirs of  said Smith, and none of the devisees or legatees under his said will are resident in Shanghai or elsewhere within the jurisdiction of this Court.

   The Attorney who represents the estate, and the heirs and beneficiaries of the deceased in the United States, objects to the issuance of letters testamentary to the petitioner upon the grounds:-

1st. - That upon the facts disclosed by the petition of said Bisset he is not a competent party to obtain probate and letters testamentary as prayed, he being an alien and residing out of the jurisdiction of this Court.

2nd. - That this Court is the only Court of original jurisdiction for granting probate of the will in question.

3rd. - That the petitioner is named in the will set out as trustee and executor, and as appears by the petition is legally incompetent to act as such.

   There are two questions of importance to be considered.

1st. - Whether upon proof of probate of the will in H.B.M. High Court of Justice in England, and letters testamentary thereon issued by that Court to the petitioner, this Court will ex comitate grant probate by issuing letters testamentary to the petitioner as executor and trustee.

2nd. - Whether the petitioner, being a British subject and not within the jurisdiction of this Court, is legally incapable of exercising the office of executor and trustee under the will of the deceased with respect to the estate in Shanghai.

   The COURT, in ascertaining the law by which it is bound, must look to the Acts of Congress creating the court and the system of jurisprudence thereby established for its guidance, and not to the local laws of the several States.  In general terms the Statutes of a particular State operate only within the territorial limits of that State, and therefore the Statutes of California and other States, cited in the argument, even if they go as far as is claimed, which I think altogether doubtful, are not in force here.  Section 4,086, Revised Statutes of the United States, provides the rule of law for this Court clearly and unmistakeably.  This, then, is a case coming within the common law, equity and probate jurisdiction of the Court.

   Looking to these three branches of jurisprudence, the law seems to be well settled by the authorities both in America and England:-

That the domicile of the deceased is the place of primary and exclusive probate jurisdiction.

12 American reports, Leonard v. Putnam, p. 106; 5 English Law reports, Miller v. James, et al, p. 502; Williams on Executors, vol. I (7th ed.), p.p. 362, 363, 365, 366.

When the Court of probate is satisfied that the testator died domiciled in a foreign country, and that his will containing a general appointment of executors has been duly authenticated by those executors in the proper Court in the foreign country, it is the duty of the Probate Court in this country to clothe the foreign executors with ancillary letters of probate to enable them to get possession of that part of the personal estate which was locally situate in England.

Williams on Executors, Vol. I, page 370.

In general the English Courts of Equity will restrain the representatives and legatees of an estate, where the testator died domiciled in England, from taking proceedings in a foreign Court to administer the personality, and they will not be allowed to take proceedings abroad, in regard to the administration of realty there located, if by so doing the administration of the personality, in the domestic forum, will be embarrassed.'

Storey's Equity Jurisprudence, sec. 589b; Hope v. Carnegie, 12 Jur., N.S., 284.

   In the argument, Counsel for the Petitioner raised a doubt as to the place of domicile of the deceased - and this is material to the case.  The question of domicile must determine the place of original and exclusive probate jurisdiction.  There had been much learning exhausted upon the subject of domicil, and the possibility of the existence of two domicils.  But it is not difficult to decide in this case where the deceased had his domicil.  The language of the will is:-

"I, Edwin Maurice Smith, of Shanghai, in the Empire of China, but not temporarily residing at the Charing Cross Hotel, in the county of Middlesex, England, hereby declare, &c., &c., &c.

The averments on the petition are to the same effect, and that the said Smith was a citizen of the United States of America.

   Many definitions of domicil have been given, but, says Phillimore (International Law) vol. IV, page 43:-

Perhaps, however, the American Judges have been most successful in their attempts, and from a combination of their dicta upon different occasions, we may arrive at a tolerably accurate definition in designating it 'a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.

Guietr v. Daniel, 1 Binney's Reports, 349, note; Ebbers v. Kraft, 16 Johnson's Reports, p. 128; the Francis, 8 Cranch; Johnson v. Sundry Articles of Merchandise, Peter's Condensed Reports of cases in the Supreme Court of the United States, vol. III, p. 171.

   According to Vattel,

Domicile is an habitation fixed in some place with an intention of remaining there always.

Vattel, Droit des Gens, i.i.c. xix. S. 218 du Domicile.

There is not an iota of domicil in such a residence as that of the deceased at the Charing Cross hotel.  Admit the possibility of two domicils in this case, the domicil of choice and the domicil of origin,  for the original domicil may be preserved by the effect of a treaty (Phillimore, vol. IX, p. 196), still the domicil of the deceased was at the time of his death within the jurisdictional limits of this Court, where his realty is situate, the preliminary and excusive place for probate of his will.

   Changing the  phraseology of the petition, but not the substance, it says:-

Edwin Maurice Smith, of Shanghai, a citizen of the United States, temporarily residing at the Charing Cross Hotel, &c., &c., &c., - and who died at Shanghai November 19th, 1878.

By what accepted rule of interpretation can this be held to be a domicil other than that within the primary and exclusive jurisdiction of this Court.  The deceased not being domiciled in England, the res sitae and the commorancy both being within the jurisdiction of this court, upon what principle or precedent is it to be held that the probate of the will and granting letters testamentary there, binds this Court, in law or comity, to appoint an executor and trustee whereby is ousts its own original and exclusive jurisdiction.

   A potent reason for the rule that the place of domicil is the place of primary and exclusive probate jurisdiction, is that there the deceased had fixed the seat of his fortune, the centre of his negotiations, and the accumulation of his property - it was the place of his choice and premeditation, where all his affairs centre and determine.

   The remaining question as to whether the petitioner, being a British subject not within the jurisdiction of this Court, is legally incapable of performing the office of executor and trustee, is perhaps not so simply.  He is appointed by the testator in the deed of trust as one of the executors and trustees, and it is a well settled rule that the Court should have regard to the wishes of the person by whom the trust has been created, it expressed in the instrument creating the trust or clearly to be collected from it.  The appointment of a trustee thus made will not be set aside except for weighty reasons.  The testator is to be permitted to dispose of his property to such person s, through such persons, and for such purposes as to him shall seem meet and proper, provided this disposition is not made in conflict with law.  The objection is made that the petitioner, being an alien not domiciled within the jurisdiction of the Court, cannot lawfully execute the trust.  The general jurisdiction over trust estates beings to Courts of equity, and they will not allow the management of such estates to pass beyond their control, for it is the duty of such Courts to enforce the execution of trusts.  In the case of a trust estate within the jurisdiction of the Court, the trustee or trustees thereof being without its jurisdiction, it is clear that the Court would have little or no power in its supervision over the management of the estate.

   The trustees would not be within reach of the process of the court, nor amenable to its orders of decrees.  The confusion  and the injuries which might ensue to an estate and all its interests, so situated, have been guarded against by what now seems to be the settled doctrine in  America and England, as defined by Lewin's Law of Trusts, p. 27.

In general terms, a person to be a trustee should be a person capable of taking and holding the legal estate, and possessed of natural capacity and legal ability to execute the trust, and domiciled within the jurisdiction of the Court.

   "If a trust is cast upon a person incapable of taking and executing it, Courts of Equity will execute the trust by decree, or they will appoint some person capable of performing the requirements of the trust. " Perry on Trusts, vol. 1, par. 39.

   "If property has been bequeathed in trust, and no trustee, or a trustee disabled from taking , or one who is dead, or refuses to take, is appointed, the Court will decree the execution of the trust by the personal representatives if it is personal; property, and by the heirs and devisees, if it is real estate."

   Perry on Trusts, Vol. I, par. 38; Piat v. Vattier, 9 Pet. 405; Gibbs v. Marsh, 2 Met. 243; Withers v. Yeaden, 1 Rich. Eq. p. 325; Cushney v. Henny, 4 Paige, 345; De Baranti v. Gott, 6 Barb. 492; Malin v. Malin, 1 Wend. 625; McIntire v. Zanesville, C. and M. Co., 9 Ham. 203; Kerr v. Day, 14 Penn. St. 114.

   "If the alien be domiciled abroad it is an objection to his fitness for the office of trustee, as he is not amenable to the jurisdiction of the Court."

Lewin's Law of Trusts, p. 37; Spence's Equitable Jurisprudence, p. 32; Perry on Trusts, vol. I, pars. 55, 275, 276, 818. In re Harrison's Trusts, 22 L.J. (Ch.) 69.  In re Guibert, 16 Jur., 852.

   The petitioner is a British subject residing and domiciled in Great Britain, but were he domiciled in  Shanghai, it would not change his status in this case, for the jurisdiction here being only personal, not territorial, he would not be amenable to the orders of the Court.

   In the argument, two precedents in this Court are cited, but there is nothing to show that the questions presented here arose or were presented in these cases, - cases which doubtless were heard on ex parte applications, and it rarely happens that ex parte proceedings settle important principles.

   The current of authority in the Courts of the United States seems to be clear and strong against non-resident aliens acting as trustees, especially concerning chattels real and real estate.

   The reasons which apply against the petitioner, as trustee, apply with equal force against his acting as executor.

If the executor named in the will, or the next of kin, be out of the kingdom, the ecclesiastical Courts have, as they always have had, the power, before probate obtained, or letters of administration issued, of granting to another administration durante absentia.  Lord Holt said it was reasonable there should be such an administration, and that this administration stood upon the same reason as an administration durante minore  aetate  of an executor, viz., that there should be a person to manage the estate of the testator till the person appointed by him is able."  Williams on Executors, vol. I, p. 502.

   In this case the absence and inability of the petitioner is necessarily perpetual, since he can never be within the jurisdiction of the Court which has  sole jurisdiction of the estate.  By the 55th Rule of the regulations governing the United States Consular Courts in China, the law of Ecclesiastical Courts is made a part of the law of this Court.

   The argument that another "competent and powerful" Court could administer the law, is not an answer to these principles settled and enunciated by the Courts of England and America.  Certainly that Court would administer the law clearly, justly, and with an even hand, according to its juridical system; but this is not a question of comity between Courts; it is a question of jurisdiction, and it is a digression of argument to say that another Court would administer the law properly.  The original and exclusive jurisdiction belongs to the Court of the United States,  as provided for by Treaty and the Laws of Congress, - it is in respect of the property of a citizen of the United States, in which other citizens of the United States have a very large interest, and concerning whom the rules of procedure, the interpretation of wills, the policy of American Law as to trust estates, and the Court of Appellate Jurisdiction may be of the first importance, as contra-distinguished from the different rules and course of trial, original and real, in the Court of another nation.

   The jurisdiction of a Court once properly obtained in a particular case, as in this case, will not be relinquished for mere convenience, especially if that jurisdiction is to be passed in contravention of law.

When a State by its own code speaks positively on a subject, it must be obeyed by all persons who are within the reach of its sovereignty.  Story's Conflict of Laws, paragraph 23.

   Interpreting the question of the jurisdiction of United States consular Courts in China, the then Attorney general of the united States, the hon. Caleb Cushing, says:-

This point is determined very explicitly in our Treaty with China, which, in the most unequivocal terms, places all the rights of Americans in China, whether as to persons or property, under the sole jurisdiction, civil and criminal, of the authorities of the United States, and congress had made provision to meet the exigencies of the treaty in this respect. Opinions of Attorneys General, Vol. VII, p. 28.

   This opinion is quoted with approval in Wheaton (International Law) 6th ed., p. 312.  The Court cannot relinquish its prerogatives, nor recede from  its obligation under the Treaty.

   "No nation being under any obligation to yield up its own laws, in regard to its own subjects, to the law of other nations, it will not suffer its own subjects to evade the operation of its own fundamental policy or laws, or to commit fraud in violation of them, by any acts or contracts made with that design in a foreign country, and it will judge for itself how far it will adopt, and how far it will reject, any such acts or contacts." Story's Conflict of Laws, par. 106.

   "No nation is under obligation to do anything prejudicial to its own authority, or to the rights of its citizens." Story's Conflict of Laws, par. 512.

   "It is the duty as well as the right of every Government and its courts to protect its own citizens in the enjoyment of their property within its jurisdiction, observing the equal rights of otters."  3rd Pick. R. 128.

   "Even the property of individuals is, in the aggregate, to be considered the property of the nation, with respect to other States.  It in some sort really belongs to her  from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power.  She is interested in that property by her obligation to protect all her members."  Vattel, p. 164.

   These principles, which are expedient and politic, ands which flow from and  depend upon the reciprocal relations and duties of the State and its citizens, apply with peculiar force in this case.

   A nation cannot be expected to surrender its authority over the persons and property of its citizens, when the person and property are within the limits of its territory, or under the jurisdiction of its Courts, and particularly if that jurisdiction in a foreign country is provided for by treaty to be sole and exclusive.  To transfer that jurisdiction to another foreign forum would be a violation of a compact by treaty, and an abandonment by the State of its obligation to protect the persons and property of all its members by its own laws, in the mode of their operation, in whatever way they may be peculiar to its own polity, and in accord with the system of its sovereignty, for every nation in the exercise of its sovereign will establishes systems in unison with the genius of its people.

As it is an incident to the sovereign power of every independent State to have authority over all persons residing or being within its borders, so it is an incident to the same power to have authority over all things or property of every description within its borders. Phillimore ("International Law") Vol. IV, p. 407.

   In this case the ex-territorial borders of the United States extend by treaty so far as to give the sole and exclusive jurisdiction over the property of the deceased to this Court, and this is not only a prerogative of the Court, but it is obligatory and mandatory on the Court in so far as the protection of every American interest is involved.

   Beside the American beneficiaries there is a Chinese subject named in the will as a cestui que trust.  In case of litigation between the latter and the former, thirds is the only foreign forum for the arbitrament of their rights and the enforcement of a decree against the estate.

   In a controversy between the American beneficiaries, or the heirs at law, concerning their rights in the estate, it is clear that the American forum is the only one in which these rights can be adjudged.  Suppose they are so adjudged, how can the decree of the court be enforced against a trustee holding the legal estate, and who is not only not domiciled within the jurisdiction of the Court, but who, even were he in the Court room at this moment, or at any time, as such trustee and executor, or otherwise, would still be without the jurisdiction of the Court.

   Thus the granting of letters testamentary to the petitioner would be total and final surrender of all jurisdiction or authority over the estate of the declassed by the authorities of the United States, in derogation of the treaty with China by which the tribunal for litigation between the citizens and subjects of the two countries is agreed upon and fixed; and, contrary to guarantees of law and treaty, changing the forum of first and last resort in which citizens of the United States are to have their rights of property heard and adjudicated.

   I conceive that the management and all the substantial interests of the estate, and of all those who are concerned it it, can only be controlled and determined within the jurisdiction and by the authority of the Courts of the United States.

   I see no objection to the probate of the will upon application duly made, but I must refuse an order granting letters testamentary to the petitioner.

"It is a rule that admits of no exception, that equity never wants a trustee, or, in other words, that if a trust is once properly created, the incompetency, disability, death, or non-appointment of a trustee shall not defeat it."  Perry on Trusts, vol. I, p. 28.

Therefore, at an early day it will become necessary for the court to appoint two trustees to carry out the will of the testator.

   The costs of the application will be taxed against the petitioner.

   Mr.  WAINEWRIGHT - With regard to the question of costs, I should like to say a few words.  I think, as in this case, where a petitioner is appointed trustee by the testator, it is incumbent on him to a certain extent to contest his rights; and therefore I think it is a fair case for the costs to come out of the estate.  It was the petitioner's duty to the testator to contest this question of law, which, to say the least, is a novel one, and one which I simply say it was his duty to contest; and to throw upon him personally the hardship of paying the costs of this application seems to me rather cruel.

   The COURT - Certainly that would be the ordinary course according to the rules of procedure, but there is much weight in what you say.

   Mr. WAINEWRIGHT - Yes, unsuccessful parties prima facie pay the costs.  But in this case I say the trustee appointed by the testator had a right to come to this Court to see if he would be justified to clothe himself with the trust the testator had given him.  Under such circumstances I think it is only fair that the costs should come out of the estate.

   The COURT - There is no doubt great force in what you say, and I will take the matter into consideration.

   Mr. HENDERSON - I am not prepared to assent to that proposition.  I think with legal objections of the nature that have been disclosed in the argument on this application, it was the duty of the parties to take legal advice, and they should have been governed by that advice.  If it was bad advice they should certainly pay the penalty.  But all I have to say at present is that I do not assent to the application.

   Mr. WAINEWRIGHT - For the enlightenment of my learned friend Mr. Henderson, I may say we took the advice of two or three eminent American lawyers, and the petitioner was told that the question was one that he had a very good chance to succeed in.

    Mr. HENDERSON - There are some very bad lawyers in America.

   Mr.  WAINEWRIGHT - It appears so.

   The COURT - I think there is much in the point raised by Mr. Wainewright in reference to costs, and I think it will be better for the matter to stand over.

   Mr. DRUMMOND - The objection is one very properly taken by Mr. Henderson, who, it must be remembered, acts in the interests of absent persons who are not here to act for themselves.

   The COURT - I will not tax the costs now.  I will leave it an open question.  It will be left in abeyance for the present.

   Mr. DRUMMOND - There is one paragraph, or just a few words at the end of the judgment, which necessitates my asking the Court a question upon, and making one or two observations in relation thereto.  Just at the end of the judgment are the words that the Court will proceed to appoint two new trustees.  In referring briefly to the present position of the case, I would remind your Honour of the following facts.

   At the time the Court first took cognizance of this particular estate neither of the two trustees named in the will were present in Shanghai, and none of the heirs and beneficiaries under the will were within the jurisdiction of this Court, or represented within the jurisdiction of this court.  That being so the Court very necessarily and very properly, and as authorised by the laws of the United States, took charge of the estate and appointed temporary administrators, Messrs. Knight and Lester, and the property remains in their hands at the present time.  As application had been made on behalf of one of the trustees named in the will, the other trustee having renounced altogether, and that application has just been dealt with by your Honour deciding by the judgment you have just delivered that the sole remaining trustee under the will is ineligible to act in that capacity - that, in fact, he is incapable to act as a trustee or executor under the will.

   Your Honour, I believe, is aware that a Power of Attorney has been filed on the records of this Court, which said Power of Attorney had been executed by all the heirs and beneficiaries under the will who are citizens of the United States and resident in that country.  All the heirs and beneficiaries residing in the United States have appointed Mr. F. B. Forbes and Mr. F. D. Hitch, of the well-known form of Messrs. Russell and Co., as their representatives in all matters concerned with this estate and their interests under the will.  That being so the position of affairs is now entirely changed, and it appears to me that all the beneficiaries being now, in fact, present in Shanghai by their representatives, that they are the proper persons, and the only persons, to take steps to obtain probate of the will, and to apply to the Court to arrange for the administration of the property itself.  That being so, I would ask whether the Court means, by those last words at the end of the judgment, whether it considers itself bound to take the initiative in any future steps in regard to the estate, or whether, in the altered state of affairs, the beneficiaries, by their representatives, should take the initiative.

   The COURT - I think the situation, as it appears to me, requires the initiative e to be taken by the Attorney representing the beneficiaries.  In the absence of their representative, I think it would be the duty of the Court to appoint trustees, but as they are now represented it is for them, I think, to take the initiative.

   Mr. DRUMMOND said he only desired to know whether the Court would take the initiative in regard to further steps being taken to administer the estate, or whether it would be left to the persons interested under the will to do so, and the Court had said it was not for it to take the initiative.

   The COURT - There is no objection to probate being granted to proper persons.

   Mr. DRUMMOND said that was the only question he wished to ask, as he represented those who held the Power of Attorney on behalf of the heirs and beneficiaries who were citizens of the United States, residing in America.

   The COURT then adjourned.

 

Source: The North China Herald, 23 September 1879

LAW REPORTS.

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 17th Sept.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge.

In the matter of the Estate of EDWIN MAURICE SMITH, Deceased.

Application for Probate of the Will.

     Mr. W. V. DRUMMOND appeared for the petitioners, Messrs. F. B. Forbes and F. D. Hitch.

   Mr. R. E. WAINEWRIGHT appeared for Mr. J. P. Bisset, one of the executors and trustees named in the will.

   Mr. J. J. HENDERSON appeared for the next of kin and heirs at-law of the deceased.

   The COURT, in opening the proceedings, said - This is a petition filed by Francis Blackwell Forbes and Frederick Delano Hitch for the probate of the will of Edwin Maurice Smith, deceased, and for the issuance to them of letters of administration, and for their appointment as trustees of the will

   The petition, filed by Mr. DRUMMOND, on behalf of Messrs. F. B. Forbes and F. D. Hitch, was as follows:-

  1. - That Edwin Maurice Smith, a citizen of the united States of America, late of Shanghai, in the Empire of China, who who at the time of making his last Will and Testament hereinafter mentioned was temporarily residing at the Charing Cross Hotel, in the county of Middlesex, in England, died on the 19th day of November, 1878, at Shanghai aforesaid, having made and duly executed his last Will and Testament, bearing date the 1st day of October, 1870.
  2. - The said Testator in his said Will appointed Thomas Hanbury and John Petrie Bisset, both of whom are subjects of Her Britannic Majesty and beyond the jurisdiction of this Court to be the Trustees and Executors of his said Will.
  3. - By an instrument in writing under his hand and duly acknowledged, the said Thomas Hanbury did on the  4th day of March, 1879, declare that he had not intermeddled in the estate and effects of the said deceased, and would not hereafter meddle therein with intent to defraud creditors or otherwise, and did thereby renounce all his right and title to the Probate and execution of the said Will, and to all power, profit, right and authority granted to or conferred upon by him by his appointment as an executor thereof.
  4. - By a judgment delivered by this Court on the 11th day of August instant, the said John Petrie Bisset was by reason of his being an alien and beyond  the jurisdiction of this court declared to be incapable of being appointed and legally incompetent to act as such trustee and executor.
  5. - The said Edwin Maurice Smith, deceased, was at the time of his death domiciled at Shanghai aforesaid, and died, seized and possessed of a large amount of real and personal estate in Shanghai aforesaid, the appraisers appointed by this Court having estimated the said real estate to be of the value of six hundred and twenty-five thousand Shanghai taels or thereabout, and the said personal estate to be of the value of thirty-one thousand Shanghai taels or thereabout.
  6. - The beneficiaries under the said Will who are citizens of and resident in the United States of America have by a Power of Attorney, dated the 31st day of May,. 1879, and duly executed at New York, in the United States of America, appointed your petitioners to be their and each of their attornies for the purpose of protecting their interests and enforcing their rights.
  7. - The said Francis Blackwell Forbes (commonly known as Frank Blackwell Forbes) and Frederick Delano Hitch are citizens of the United States of America, and partners in the firm of Russell and Company, of China and Hongkong, and are now residing and intend to continue to reside at Shanghai aforesaid, and they are willing to undertake the execution of the trusts of the said Will on behalf of all persons beneficially interested therein.
  8. - Your petitioners are desirous that the said Will shall be submitted to Probate and recorded in this Honorable Court, that letters of Administration with the Will annexed be issued thereon to them, and that they shall be appointed trustees of the said Will.

   Your petitioners therefore pray that said Will may be submitted to Probate and recorded, that the Letters of Administration with the Will annexed may be issued to them accordingly, and that they may be appointed trustees of the said Will, and your petitioners will ever pray.

   Mr. J. J. HENDERSON, acting under a Power of Attorney filed in the Court on behalf of the next of kin and heirs-at-law of the deceased, had filed the following objections to the petitioners'' application:-

Debly Everly, Emily Pitcher, Belle Walker, Lizzie Walker, and Amanda walker, next of kin and heirs-at-law of the deceased, of Philadelphia, Pennsylvania, in the united States of America, answering the petition of Francis Blackwell Forbes and Frederick Delano Hitch for the Probate of an alleged Will of Edwin Maurice Smith, so-called, deceased, and for the issuance to them, the petitioners, of Letters of Administration with said alleged Will annexed, and for the appointment of the petitioners as trustees of the said alleged Will, object to the Probate of the said alleged Will of said so-called Edwin Maurice Smith, and to the issuance to the petitioners Letters of Administration with said alleged Will annexed, and to the appointment of the petitioners as trustees of said alleged Will or the estate of the deceased, on the grounds:-

  1. - That as appears on the face thereof the said alleged Will is inconsistent, contradictory and impossible of execution.
  2. - That as appears upon the face thereof the said alleged Will is uncertain and unintelligible in its provisions.
  3. - That as appears on the face thereof the said alleged Will unlawfully tends to create an estate in perpetuity, and unlawfully infringes and violates the rule against perpetuities, and unlawfully creates an estate in perpetuity.

   For further objection to the granting of said petition, they humbly show to this Honorable Court,

  1. - That the true, lawful and proper name of the person called Edwin Maurice Smith, in  said petition, and who died at Shanghai on or about the 19th day of November, 1878, as alleged therein, was Edwin Maurice Pitcher, and that the name "Edwin Maurice Smith" by which the  said deceased was latterly known, was a false and fictitious name, which the said deceased had unlawfully assumed, and that as appears upon the face thereof the said alleged will was executed, if at all, by said deceased, under and in such unlawful and fictitious name.
  2. - That said Edwin Maurice Pitcher, falsely called Edwin Maurice Smith, was never married, and died without lawful children.
  3. - That they, the aforesaid Debly Everly and Emily Pitcher are sisters of the said deceased, and that they, the aforesaid Belle Walker, Lizzie Walker, and Amanda Walker, are nieces of the said deceased, and that they all are next of kin and heirs at law of the said deceased.
  4. - That at the time the said alleged Will was made, the deceased was unsound of mind, memopry and understanding and incapable of making a Will.
  5. - That the  said alleged Will unlawfully vests or  attempts to vest the estate of the deceased in persons legally incapable of taking and of holding it.

Wherefore the said Debly Everly, Emily Pitcher, Belle walker, Lizzie Walker, and Amanda Walker pray this Honorable Court that the said alleged Will be declared illegal, null and void; that the petition of said Francis Blackwell Forbes and Frederick Delano Hitch be dismissed, and that the Estate of said Edwin Maurice Pitcher, falsely called Edwin Maurice Smith, be settled up and disposed of as the law in such cases directs.

   Mr. J. J. HENDERSON said - I appear here, instructed by Dr. Pitkin, the attorney for five of the next of kin and heirs-at-law of the deceased, residing in the United States, to oppose the granting of the probate of the will and letters of administration to Messrs. Forbes and Hitch, and their appointment as trustees.  The objections I raise to the petition of Messrs. Forbes and Hitch have been filed this morning.  Besides, I have also filed a motion asking that a commission be issued to take the testimony of certain parties living bin England and America who are out o f the jurisdiction of the Court, and whose evidence is of importance in the proposed contesting of this will, and that until that commission be returned, I ask that all further proceedings in the Court in this matter be stayed.

   Mr.  WAINEWRIGHT - I am instructed on behalf of Mr. John Petrie Bisset, one of the executors appointed under the will, to apply that nothing further may be done in this matter until he has had time to send out instructions from England.  I may just state the facts:-

On the 3rd of September, Mr. Buchanan, who is agent here for Mr. Bisset, telegraphed to him that "Mr. Forbes has applied for letters testamentary; shall we oppose? Wire instructions."

   In answer to that Mr. Buchanan received a telegram on the 8th Sept., "Delay hearing, pending further particulars."

As instructed, I have merely to ask on Mr. Bisset's behalf, as being a party interested under the will, that the hearing may be suspended until there is time for him to take part in any discussion that may arise upon the application.  I have Mr. Buchanan here to prove the sending and receipt of the telegrams.  I did not think it necessary to file a motion, but I now make application for an adjournment.

   The COURT - An application for an adjournment must be made upon an affidavit to show cause why there should be an adjournment.

   Mr. WAINEWRIGHT - I am not prepared with an affidavit now, but I can file one in the course of the morning to the effect of what I have stated.

   The COURT - What is the nature of the papers you have filed, Mr. Henderson?

   Mr. HENDERSON - The papers I have filed contest the will, on the grounds set forth in the answer and objections to the petition.

   Mr. DRUMMOND - I appear here this morning in support of the petition which has been filed by Messrs. Forbes and Hitch.  With regard to the papers which Mr. Henderson, I hear, has filed, I would say in the first place that I enquired of the Clerk of the court at ten o'clock this morning if any papers had been filed in this matter, and I was told "No."

   The COURT - A hearing cannot occur now upon the papers which have just been filed.  You are entitled to have copies of the papers filed served on you, and the next proper thing to do is for those copies to be served; and the only remaining question is to fox a date for the hearing when issue is joined.

   Mr. HENDERSON -But this was the day fixed for the purpose of contesting the probate of the will of the deceased.

   Mr. DRUMMOND - I presume the papers filed this morning, at the moment of hearing, cannot be used at the hearing if it takes place now.  I am entitled, I presume, to have full notice of the contents of those papers to know what I have to meet.  I have never seen the papers, and was told at the last moment before the hearing commenced that there was nothing on the file.

   The COURT - An order will be made for copies of these papers to be served upon you.  Then you can decide on what course you will adopt, whether you demur or not.

   Mr. HENDERSON - Today was the day fixed to make objections to the probate of this will.  Objections have been made, and the matter now has to be argued.  The only thing unusual about it, so far as I can understand, is that absent parties have not been notified by citation.  There has been no notice given to them, and the notice in the newspaper does not state that there is any application for the appointment of trustees.

   Mr. DRUMMOND - Burt when I came to support this motion no papers had been filed.

   Me. HENDERSON - They are filed now.

   The COURT - When papers are filed, the proper course is for copies of them to be served on the other side who must be allowed ample time to reply.

   Mr. HENDERSON - I do not wish to urge the matter to a hearing - not at all.   What I say is that today was fixed for the application for granting probate to the will, and I have filed objections to probate being granted.

   The COURT - And the Attorney representing the petitioners in this case may demur or answer, and ample time must be allowed for that purpose.

   Mr. DRUMMOND - It seems to me that the first question is whether the papers filed by Mr. Henderson were filed in time for any notice to be taken of them by the Court.  A notice of this application has been in the newspapers a long time and anybody could come and make objections, but nobody did until the moment of hearing.  Mr. Henderson has been in Shanghai all this time.  There was nothing to prevent his coming forward at an earlier date to file his objections, of  which he must have been perfectly aware, and then copies could have been served and the hearing proceeded with in the usual way.  But Mr. Henderson has chosen to delay filing his injections until the moment of hearing.  There was no necessity for such a delay, and the objections have been filed altogether too late to be of use to any party.  In support of the petition I have filed, I propose to put in document setting forth the position of Messrs. Forbes and Hitch hold in this matter, and then ask for an order in accordance with the prayer of the petition.

   The COURT - It is not necessary to proceed with that proof unless you are now ready and prepared to answer the questions raised in the papers filed by Mr. Henderson.  Certainly, I say, they are filed within time.  It is the universal custom of all American Courts in cases of this kind, and there is no question that the objections were filed within time.

   Mr. HENDERSON - And I would remind the Court that the objections on the application by Mr. Bisset for the probate of the will were filed only the evening before, and my learned friend (Mr. Drummond) who then appeared with me said that they might have been kept back until the following morning.  I have no doubt that the objections in this case were filed on answer day within the meaning of the advertisement - it is ten o'clock until it is eleven.

   The COURT - It is unnecessary to discuss that question further.  There is no question in my mind that the papers were filed within time.

   Mr. DRUMMOND again proposed to introduce certain documents in support of the petition, and he presumed it would then be for Mr. Henderson to raise his objections, and if necessary he could make an application for an adjournment, and that it would then be for him to consider whether he would oppose such an application or not.  He thought it was advisable that the proceedings should be carried on so far as the introduction of formal documents was concerned.

   Mr. HENDERSON strongly objected to the mode of procedure proposed by Mr. Drummond - it was entirely new tom him, not having heard of it before.  Mr. Drummond had filed his petition and he had filed certain objections to it, and they were to be considered.  The documents were before the Court, but the issue was not made up yet, and he had applied for a commission to take the testimony of certain witnesses beyond the jurisdiction of the Court, whose evidence was indispensable in the determination of the case, and until this commission returned, and in face also of the position in which Mr. Wainewright stood, proceedings should be stayed.  This was the usual, invariable, and proper course, but Mr. Drummond proposed to proceed to try half the case and then have an adjournment to decide on what course should be then taken, which seemed to him to be an entirely new mode of procedure, one that he had never heard of before, and one the Court would have great difficulty in finding a precedent for.

   He could not understand what advantage or reason there could be for the great manifestation of haste in this matter.  The estate was perfectly safe in the hands of the United States Consul-General and the officers appointed by him; everybody was satisfied, and the thing was moving smoothly along.  By law the Consul-General was allowed twelve months to deal with the estate, and there was no occasion to take it out of his charge when it was being properly administered and place it into other custody, which would probably turn out in the end to be but temporary, in view of the application made by his learned friend Mr. Wainewright. With all these probabilities in view, it would be the most strange proceeding imaginable to rush this thing to trial and place it in a doubtful position.

   The COURT said issue was not joined yet, and he did not think it was necessary to introduce evidence until that was done.  The petitioners might wither demur or answer, and until they decided what course they would take it was useless to go on.

   Mr. DRUMMOND pointed out that the position in which the petitioners were placed forced then to take proceedings, and he thought it could not be said they had taken proceedings in haste; on the contrary there had been considerable delay already.  He again suggested that he should put in the documents proving the position of his clients.

   The COURT repeated that the issue had not yet been joined, and before that was done it was not necessary to receive the documents.  The issue must be joined first, and until that was done there was noting before the Court.  He would direct that copies of the papers filed by Mr. Henderson should be served on Mr. Drummond without delay and then issue could be joined.  The only question now was to fix a day for the hearing to take place.

   Mr. DRUMMOND asked for Mr. Henderson to show his authority and instructions from the parties he said he appeared for.

   Mr. HENDERSON - My authority is on the file of the Court, but I don't know that it is necessary for me to show you my instructions.

   The COURT - Mr. Henderson, of course, must show his authority.

   Mr. HENDERSON - Standing here as the Attorney for the estate, I have no information that these people who now appear and ask for the probate of the will have any right whatever here; there's no evidence to show that they are in any way identified with the persons mentioned in the will; there's a Power of Attorney, but there's no declaration on oath receivable as evidence that these people have been identified at all.

   I merely say this to show what might be said is we were disposed to quibble.

   Mr. DRUMMOND - I should like to put in the documents on this subject.  The matter would then be on a better footing to all parties, and I would ask your Honour to decide of Mr. Henderson has any right to object to my application today.

   The COURT - There is a Power of Attorney filed by Mr. Forbes and Mt. Hitch representing some of the beneficiaries; and a Power of Attorney is also filed by Mr. Henderson on behalf of five persons representing themselves to be the heirs-at-law of Edwin Maurice Smith.

   Mr. HENDERSON -And the greatest number is on our side - five against their two-and-a-half.

   Mr. DRUMMOND - Is his Power of Attorney filed in Court?

  The COURT - There's no doubt of that.

   Mr. HENDERSON - It has been filed for a fortnight; my clients are the heirs-at-law and next of kin.

   The COURT - The documents are all right and his Power of Attorney is under the seal of the Court of Philadelphia, and they have been on the file since the 21st August.

   Mr. HENDERSON - And I have specific instructions to contest the will on various grounds.

   Mr. DRUMMOND - I merely wanted to be satisfied that Mr. Henderson represents some one who had substantial interests at stake, and I am entitled to ask the Court id he has a proper locus standi before his objections are entertained.

   The COURT - The Power of Attorney is filed, and you have access to it.  If you doubt its authenticity you can raise that question.

   Mr. DRUMMOND said if the Court was not disposed to hear him now in support of the application for the probate of the will, would it inform him as to the shape the proceedings would take when issue was joined.  The practice laid down for the Courts in California seemed to be a trial before the Court and Jurors.

   The COURT said it would depend on the course he (Mr. Drummond) himself took.  If there was any question of fact involved he should sit with Assessors, but if it was merely a question of law there would be no Assessors.

   Mr. HENDERSON pointed out that his objections raised both questions of fact and law, and he asked for the will to be declared null and void and that the estate be settled up according to law.

   Mr. DRUMMOND thought a week or ten days would be sufficient for him to decide what course he should take in joining issue.

   The COURT said he would fix any day the parties liked.  There were great questions involved in the pleadings already, both of fact and law.

   Mr. DRUMMOND said that day week would suit him.

   The case was accordingly adjourned until that day week.

 

Source: The North China Herald, 10 October 1879

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 24th Sept.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge.

In the matter of the Estate of EDWIN MAURICE SMITH, Deceased.

Application for the Probate of the Will.

   Mr. W. V. DRUMMOND appeared for the petitioners, Messrs. F. B. Forbes and F. D. Hitch, who hold a Power of Attorney for the heirs and beneficiaries under the will.

   Mr. R. E. WAINEWRIGHT appeared for Mr. J. P. Bisset, one of the executors and trustees named in the will.

   Mr. J. J. HENDERSON appeared for the next of kin and heirs-at-law of the deceased.

   The matter was before the Court on the 17th inst.  Mr. Drummond, on behalf of Messrs. F. B. Forbes and F. D. Hitch, attornies for the heirs and beneficiaries residing in the United States, had filed a petition for the probate of the will and for the issuance of letters testamentary as trustees of the will.  Against the petition Mr. Henderson filed certain objections, a copy of which had not been served on the petitioners at the last hearing, and in consequence issue had not been joined.  For this to be done an adjournment was decided upon until today; whereas at the same time Mr. Wainewright applied for further proceedings in the matter to be postponed until such time as he received instructions from his client, Mr. J. P. Bisset, in England.

   The COURT now explained that two motions had been filed - one for a commission to take testimony de bene esse of persons beyond the jurisdiction of the Court, and the other, filed by Mr. Wainewright, as Counsel for Mr. Bisset, asking for an adjournment of all further proceedings until the 13th November.

   It was admitted by the different parties that copies of these motions had been served on them.

   In support of the motion by Mr. WAINEWRIGHT, the following affidavit had also been filed:-

James Buchanan, of Shanghai, in the Empire of China, Share Broker and Land Agent, being duly sworn, says:-

  1. - That he is the agent in Shanghai of John Petrie Bisset, one of the trustees and executors named in and appointed by the above-mentioned Will of the above-named Edwin Maurice Smith, deceased, and that in conjunction with Robert Ernest Wainewright, the attorney and counsel of the said John Petrie Bisset, and subject to the directions and instructions of the said John Petrie Bisset, in relation to the estate and affairs of the said deceased.
  2. - That on the twelfth say of August last, being the day next following the delivery of the judgment and opinion of this Honorable Court in the matter of the petition of the said John Petrie Bisset, praying that the said will of the said deceased might be admitted to probate, and that letters testamentary might be issued thereon to him the said John Petrie Bisset, he, this deponent, sent or caused to be sent to the said John Petrie Bisset by telegraph a message apprising him of the effect of the said judgment and opinion, and on the same day sent or caused to be sent to him by post a printed report of the said judgment and opinion.
  3. - That on the third day of September instant he, this deponent, sent or caused to be sent by telegraph to the said John Petrie Bisset the following message, namely, "F. B. Forbes (of Russell & Co.) has applied for letters of administration read as follows by A.B.C. Code - shall be oppose; sent instructions forthwith" - to which said message he, this deponent, received on the eighth day of September the following message in reply, namely: "Delay hearing pending further particulars."
  4. - That in obedience to the direction contained in the last-mentioned message, he, the deponent, has this day caused to be  filed in this Honorable Court a motion that the consideration of the above-mentioned petition of the said Francis Blackwell Forbes and Frederick Delano Hitch may stand over until a date not earlier than the thirteenth day of November next, such last-mentioned date affording in the opinion of this deponent and according to the course of post, a reasonable time for enabling him to receive instructions from the  said John Petrie Bisset in the matter of the  said last-mentioned petition.
  5. - That as this deponent is informed and verily believes, the said John Petrie Bisset is in communication with and is acting in concert with such of the legatees under the said will of the s aid Edwin Maurice Smith, deceased, as are resident in Europe, and that it is of importance in the interest of such legatees that opportunity should be afforded before any further steps in this matter are taken, for their views and wishes to be made known to the representatives of the said John Petrie Bisset in Shanghai.

   Mr. HENDERSON inquired whether there were any further pleadings filed on behalf of the petitioners.

   Mr. DRUMMOND replied in the negative.

   The COURT said the petition, the cross-petition or answer, and the two motions were the only pleadings on the file.

   Mr. DRUMMOND presumed then that they were exactly in the same position as they were last week except that a motion had been filed for the adjournment then asked for, and that it was supported by an affidavit by Mr. Buchanan.

   The COURT replied that in reality so far as the petition was concerned the pleadings had not changed.

   Mr. HENDERSON contended that the objections he had filed to the petition settled an issue and that the petitioners could demur.  If they did not demur, then, he maintained, the objections should stand good for hearing.  It was true a demurrer had been allowed, but there was nothing in the rules regulating the procedure of the Court for anything but petitions and answers.  In this matter an issue had been raised by the petition and the objections filed, and a similar course was adopted in regard to the application by Mr. Bisset for the probate of the same will.  The petitioners asked for a simple thing to be done, namely that the will should be admitted to probate, and he, in his objections, said the will was invalid and not entitled to be admitted to probate.  That was the issue to be determined.

   The COURT thought the question of adjournment was the question to be considered first.  Mr. Wainewright had filed a motion for the proceedings to be stayed until a certain date.  His (Mr. Wainewright's) client, Mr. Bisset, was entitled to appeal from the decision of the Court in reference to his application for the probate of the will to the Circuit Court of the United States for the District of California, and there was a certain time fixed by law for that purpose.

   Mr. WAINEWRIGHT pointed out that Mr. Bisset was not only interested as one of the executors named in the will, but he had also a beneficial interest under it; and that in view of Mr. Henderson's objections to the will generally it was only proper that all the parties interested under it beneficially should have notice of Mr. Henderson's objections and attempt to set it aside in order that they might have an opportunity of appearing, or being represented in the Court, when the question of the validity of the will was argued. Though he only represented Mr. Bisset, he would ask the Court, in the interests of all the parties concerned, to make an order that they should receive notice by citation or otherwise of Mr. Henderson's intention to try to set the will aside.

   The COURT proposed to give notice by publication and by citations by the next mail to the usual place of residence of the parties.  It was somewhat singular, he said, that the beneficiaries living in Europe had not yet come forward.  In the proceedings that had been going on it had not been absolutely necessary for them to come forward, but now the validity of the will was attacked, which went to the root of everything, it was necessary that they would be notified.

   Mr. HENDERSON replied that the beneficiaries living in Europe had communicated with him, and they had been informed by Mr. Bisset of certain objections and difficulties that appeared on the face of the will.  They had also been informed, he understood, by a legal adviser that the will was not good, that it would be pronounced void and nugatory, and they had decided to wait before they took affirmative and positive steps in the matter. That was an explanation from one of the parties that he ventured to give on his own responsibility.

   With regard to the position he himself had taken up, he urged that he was not trying to upset anything; he was merely objecting to the probate of a will which showed itself to be void and nugatory.  He was there as objector to those who wished to establish the will, and did not ask anything affirmative but that the petition be dismissed and that the same course be taken as would be taken if there was no will at all.  It was the duty of the petitioners to establish the will by contesting the objections he had filed.

   The COURT - Do you ask for the matter to be considered now?

   Mr. HENDERSON replied that he did not ask for anything beyond the consideration of his objections against the will being admitted to probate, but he understood the issue was now made up.  He objected to the establishment of the will, which, he said, must be declared null and void, because it was positively illegal and altogether nugatory.

   Mr. DRUMMOND deemed it advisable to make a few observations in support of the prayer to the petition he had filed.

   Mr. HENDERSON objected to any observations of this kind at the present time.  He had other business to attend to and did not wish to listen to observations all day.

   The COURT said the question to be considered was Mr. Wainewright's motion for an adjournment.

   Mr. DRUMMOND said he had filed a petition in the Court and had come twice to support it, and he now wished to make a few observations on the objections filed by Mr. Henderson against the petition, and also on Mr. Wainewright's motion, and he wished to do so without interruption.

   Mr. HENDERSON had no objection to Mr. Drummond dealing with the objections.

   Mr. DRUMMOND then addressed the Court at great length, pointing out that no issue had yet been joined as regarded the petition and the objections filed, nor had he filed any document at all in reply to the objections.  At the present moment his position was simply and solely in support of the petition which he had filed; and with regard to that petition he might state in the first place that it was filed simply and solely in consequence of the judgment by his Honour declaring Mr. Bisset's inability legally to act as executor, in accordance with the wishes of the testator. Had the judgment been otherwise, declaring that Mr. Bisset was eligible to act, the petitioners would have been perfectly willing to acquiesce, and they would have raised no objection to the eastside being placed in Mr. Bisset's hands. But the judgment of the Court had driven then to the necessary of taking some action; and in their discretion as to what was right and proper for them to do, they filed the petition they did.

   He then explained what he conceived to be the position of affairs, presuming that the Court would adopt one of three courses, grant the prayer of the petition, dismiss it, or adjourn the hearing.

   He then reviewed the objections filed by Mr. Henderson (which have already been published in our columns) seriatim, contending that the first three invoked solely legal questions and no evidence was required, and it would be for the Court to determine whether they were sufficient to justify the will being upset.  As to the fourth objection, namely:-

That the true, lawful, and proper name of the person called Edwin Maurice Smith in the petition, and who died at Shanghai on or about 19th day of November, 1878, as alleged thereon, was Edwin Maurice Pitcher, and that the name "Edwin Maurice Smith," by which the deceased was latterly known, was a  false and fictitious name, which the deceased had unlawfully assumed, and that as appeared upon the face thereof the said alleged will was executed, if at all, by the deceased, under and in such unlawful false and fictitious name,

Evidence might be required, but assuming the fact to be admitted that Smith was not the testator's proper name, and he thought there would be little difficulty on the part of all parties to admit it, then it also resolved itself purely into a question of law as to whether the assumption of a false name was a sufficient reason for legally setting the will aside.  He thought it could be clearly shown that it was not.  This was the first of Mr. Henderson's objections that imported into it any question of fact, and so far was the only one that requires any evidence to be called.

   Mr. HENDERSON - It is a question of fact that cannot be established here by local testimony.  You seem to lose sight of the point in the objection that he (testator) used his  false and fictitious name for an unlawful purpose.

   Mr. DRUMMOND - But all the parties concerned in these proceedings from beginning to end, so far as I am able to believe, will be perfectly willing to admit the correctness of the fact.

   Mr. HENDERSON - That he changed his name for an unlawful person (sic)  - a fact which cannot be proved in this place.

   Mr. DRUMMOND - I believe that Mr. Wainewright is ready to admit the fact, and that all the parties concerned will do the same; therefore there is no necessary to take any steps to prove that Smith was not the testator's proper name.  It is  a fact the correctness of which I believe all parties are ready to admit.

   The COURT - The only additional pint is - if he did it for an unlawful purpose, if he had an illegal object in view, to avoid a  debt for example, what would then be the effect of his using this fictitious name in his will?

   Mr. HENDERSON - Defrauding his creditors for  example?

   Mr. DRUMMOND - I do not think it could possibly make the will bad.

   The COURT - I do not intend to express an opinion about it at all, but the point seemed to me worth mentioning.

   Mr.  DRUMMOND repeated that he did not think there was anything in it.  There was the simple fact that the testator did not sign his own name, but his motive for doing so would not affect the thing one way ort the other.  If a false signature made a will bad then this will was bad, but if a false signature did not make the will bad this will was not bad, and so far as his belief went a  false signature did not make a will bad.

   The fifth and sixth objections setting forth that deceased was never married and died without lawful children, and that Debly Everly and Emily Pitcher were sisters of the deceased, and that Belle Walker, Lizzie Walker, and Amanda Walker, were nieces of the deceased, and that they all were next of kin and heirs at law of the deceased, he (Mr. Drummond) maintained were perfectly immaterial, and could not possibly affect the will at all.

   The COURT - The parties mentioned have no right to come forward of they are not in a position to contest the will.

   Mr. HENDERSON -That is what the parties are mentioned for.  They are put in for no other purpose than to show that they are legally entitled to contest the will.

   Mr. DRUMMOND, who had thought that it was the object, then went on to deal with the seventh objection, which alleged that deceased was "unsound of mind, memory and understanding, and incapable of making a will,!  This, he said, was the one great and important question raised in all the objections, and it was the only fact upon which it would be necessary to take evidence when the Court came to try the issue.  No doubt it had struck his Honour as the most important one, and the one which went nearest to the root of the whole question, whether the will was a sound and valid will or not. Without a moment's hesitation if the fact, as alleged, of deceased being unsound of mind and incapable of making a will was correct, it was a good and sound reason  for setting aside the will, and if the fact was correct the will undoubtedly was an unsound one. 

   The last objection, that the will unlawfully vests or attempts to vest the estate of the deceased in persons legally incapable of taking and of holding it, appeared to him to be quite immaterial.  If some persons named in the will were incapable of taking and holding the property, that would merely make the will bad so far as their interests were concerned and their names would be struck out of it, but that would not affect the validity of the will as a whole.    But with regard to Mr. Henderson's objections as a whole, however, he wished to say that he had neither decided to contest them nor consent to them.      

   Now, as to Mr. Wainewright's suggestion and motion for an adjournment.  It seemed to him to be a very reasonable and proper course to adopt.  It was only right and proper that the beneficiaries named in the will, who were residing in Europe, should, now it was sought to set aside the will altogether, have citations served upon them, and that proof of it brought to the knowledge of the Court.  But at present Mr. Wainewright only represented Mr. Bisset who had been, by the judgment of the Court, struck out of the will in the capacity of executor and trustee.

   In answer to the Court, Mr. WAINEWRIGHT was understood to say that he was in communication with the beneficiaries in Europe.

   Mr. DRUMMOND went on to say that citations should be served on all the beneficiaries and proof of the service received before the Court undertook to decide on Mr. Henderson's objections as to the validity of the will.  He was therefore not in a position to oppose an adjournment.

   But if the Court now granted the prayer of his petition and admitted the will to probate, a decision of that kind would not for a moment make the will a good one if it was now a bad one.  That was a point he wished to lay particularly before the Court.  The proposition that the will was a bad one, that it was illegal and nugatory, could be brought forward at any time whether the will was admitted to probate or not.  To grant the prayer of this petition as it now stood would simply have  the effect that the Court was satisfied prima facie that the will was a good one, had admitted it to probate, and had appointed the petitioners as trustees of the estate.  It would still leave the question open to Mr. Henderson to revoke the order for probate, and he could then proceed with his objections to set the will aside.

   That was the position he put forward on behalf of the petitioners, whose prayer, he maintained, could be granted without prejudicing the right or interests of any of the other parties concerned in the least.  If the Court did not consider it advisable to grant the prayer of the petition, he presumed the Court would dismiss the petition altogether, or grant an adjournment.  If the Court decided to have an adjournment, then it was a question whether the commission asked for by Mr. Henderson should not be issued and made returnable the same time as the answers to the citations, but that was a matter he would leave in the hands of the Court.

   The COURT said if it was necessary to have a commission he would issue it forthwith and make it returnable the same time as the citations, so that the matter could be all laid before the Court at once.

   Mr. HENDERSON applied for a commission to be issued, expressing the belief that it was necessary for him to do so.

   The date for an adjournment was then discussed, and it was decided that four months would be a reasonable time to allow for the return of the commission and for the answers to the citations.

   Mr. HENDERSON next referred to the way in which he had set out the 5th and 6th paragraphs of his objections to the petition, and wished his learned friends to understand that he was not so stupid as to set those paragraphs up as independent objections.  He drew them out in that way intentionally, because he knew all kinds of questions would be put by his learned friends as to his petition, and he thought he would settle the matter at once by setting out his objections and his answer side by side.  He made this explanation because Mr. Wainewright had characterised the document as amphibious (sic.).  He then pointed out that there was no local evidence to show why the deceased changed his name, which might be a very important point of it could be proved that he changed it for a purpose which this Court would not assist.  He urged  that there was no specific document, or statement under oath, to show that Mr. Drummond's clients were legally entitled to come to the Court and ask for the probate of the will, and pointed out that being Attornies for the heirs and beneficiaries they were disqualified to serve in the capacity of trustees of the will.

   The estate was now in proper legal custody.  It was one of the most important duties the United States Consuls had to perform to take charge and administer the estates of American citizens dying within their jurisdiction intestate, and he failed to see there was any great hurry to interfere with this estate when proper care was being taken of it, and in the face of the proceedings that were now pending.

   The COURT said there was no necessity for these remarks by Mr. Henderson.  The only question was as to the adjournment.  As he had said before, Mr. Bisset, on whose behalf the application for an adjournment was made, stood in a position entitling him to make the application.  Mr. Bisset was one of the trustees and executors named in the will, and as a decision had been rendered adverse to his holding that position, he had the right to appeal against that decision, and a right to be allowed sufficient time to perfect his appeal. It might happen that Mr. Bisset's appeal might be allowed and then hew would be reinstated in his position as trustee under the will, subject, of course, to any other questions that might arose.  At any rate he was entitled to be allowed a reasonable time, and a reasonable time must be allowed him to institute nay proceedings he might wish to take.

   There was also no doubt of the fact that the petitioners had come forward very properly.  Under the circumstances they could not have done otherwise.  After the decision of the Court was given rendering Mr. Bisset ineligible to act as trustee, and representing the beneficiaries as they did under Powers of Attorney, he thought it was their duty to come forward and apply for probate of the will, and for letters testamentary to be issued to them.  He thought it was in every way a very proper and fir proceeding for them to take, and he should have been glad to have  acceded to their application, berceuse he thought trey were in every way fit and proper parties to administer the estate, but the situation of the case had entirely changed since they filed their petition.  Mr. Bisset had come in and asked for a continuance presumably for the purpose of appealing against the decision, and some heirs at law had also come in opposing the will, saying that it was not valid, so that the whole situation had changed.

   There was but one question to be considered under the present circumstances, and that was the question of the adjournment, and he certainly must grant the motion made on behalf of Mr. Bisset for a postponement of the hearing until he could decide what course he was going to adopt. It seemed to have been agreed upon by the learned gentlemen engaged in the proceedings that four months would be a proper period for the matter to stand over, and that would be his decision.

   Citations would be issued at once for publication and copies would be sent by mail to the places of residence of the different beneficiaries in Europe and to the Chinaman in Canton.  He did not know that it would be necessary to serve citations on the beneficiaries represented by Messrs. Forbes and Hitch.

   Mr. DRUMMOND said Messrs. Forbes and Hitch would forward a copy of the citation to each of the persons they represented.

   The COURT said a commission would also be issued to be returned about the same time as the replies to the citations might be expected.

   It was then decided that the hearing should be postponed until the 2nd of Feb., and the Court adjourned.

 

Source: The North China Herald, 29 January 1880

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 26th Jan.

Messrs. J. WILSON and J. A. HARVIE

v.

F. P. KNIGHT,

Receiver of the Estate of EDWIN MAURICE SMITH, Deceased.

   In this case the plaintiffs' petition was as follows:

   To D. H. BAILEY, Esq., Consul-General of the United States for China, Acting as Judge at Shanghai.

   The petition of the above-named plaintiffs shew to this Honourable Court:-

  1. - That they are British subjects residing at Shanghai, and carrying on business there as storekeepers and ship chandlers in partnership together and under the style of Lane, Crawford and Company.
  2. - That the defendant is a citizen of the united States, residing within the jurisdiction of this Court, and is the receiver appointed by this Court of the Estate of Edwin Maurice Smith, a citizen of the United States, late of Shanghai, and who died at Shanghai on the 19th day of November, 1878.
  3. - That in the year 1878 the plaintiffs sold and delivered to the said Edwin Maurice Smith divers goods and chattels, and by reason thereof the said Edwin Maurice Smithy was, on the 22nd day of October, 1878, indebted to the plaintiffs in the sum of seven thousand five hundred and forty-three Mexican dollars and twenty-six cents.
  4. - That in the said month of October, the said Edwin Maurice Smith being applied to by the plaintiffs for payment, and not having ready money to meet their demands, agreed with the plaintiffs to covey to them a certain piece or parcel of land to be held by them as security for their said claim with such power of sale as hereinafter stated.
  5. - That in pursuance of said agreement, the said Edwin Maurice Smith, by deed dated the 29th day of October, 1878, conveyed to the plaintiffs, John Wilson and James Alexander Harvie, their heirs, executors, administrators and assigns, in perpetuity, a certain  peeve of parcel of land at Shanghai forming part of the lot of land registered at the British Consulate at Shanghai as Lot No. 754, and on the 11th day of the following month of November the said Edwin Maurice Smith duly transferred the said piece or parcel of land to the said John Wilson and James Alexander Harvie in the books for the registration of land kept at the consulate aforesaid, and subsequently the said John Wilson and James Alexander Harvie obtained from the British Consulate and Chinese authorities a new title deed for the said piece or parcel of land, and the same has since been known and registered at the British Consulate aforesaid as Lot. 1191.
  6. - That by a deed bearing date the 29th of October, 1878, and made between the plaintiffs of the one part and Edwin Maurice Smith of the other part, after reciting the hereinbefore conveyance, and that it had been made to secure to the plaintiffs payment of the debt due to them by the said Edwin Maurice Smithy, the plaintiffs covenanted with the said Edwin Maurice Smith that they would not before the 31st day of December, 1879, take any proceedings to enforce payment of the said debt, or sell, or otherwise dispose of (except by way of mortgage) the said land and premises comprised in the therein before recited conveyance, and that in the meantime they would not ,mortgage or pledge the said land and premises for any sum or sums of money exceeding in the whole the sum of seven thousand five hundred Mexican dollars nor for any term or period extending beyond the said 31st day of December, 1879, and also that if the said Edwin Maurice Smith should, on or at any time before the 31st day of December, 1879, pay to them, the plaintiffs, the sum of seven thousand five hundred Mexican dollars, with interest thereon calculated from the day of the date thereof, at the rate of eight Mexican dollars per centum per annum, they, the said John Wilson and James Alexander Harvie, and all other necessary parties, would upon demand and at the expense of the  said Edwin Maurice Smith, his heirs, executors or assigns, recovery and assure the said land and premises un to him, the  said Edwin Maurice Smith, his heirs, executors, administrators or assigns, or as he, or they, should direct, and also that in case the said sum of seven thousand five hundred dollars, or the interest thereon, or any part thereof respectively, should remain unpaid after the 31st day of December, 1879, they, the plaintiffs, would within three calendar months after such failure [hole in page] the surplus (if any) which should remain of the proceeds of such  sale after payment thereout of all expenses of such sale or otherwise incurred in relation to the premises (including the costs of and incidental to the preparation and execution of the now stating deed, and of the thereinbefore recited conveyance respectively if paid by them the plaintiffs), and the said principal sum of seven thousand five hundred dollars, or the unpaid part thereof and interest for the same at the rate aforesaid down to the date of payment.
  7. - That between the 22nd day of October, 1878, and the date of his death hereinafter mentioned, the plaintiffs sold and delivered to the said Edwin Maurice Smith divers other goods and chattels to the amount or value of $888.25.
  8. - That after the death of the late Edwin Maurice Smith, the defendant, as such receiver as aforesaid, caused the goods and chattels so as aforesaid supplied by the plaintiffs, or such of the said goods and chattels as had not been disposed of by the said Edwin Maurice Smith in his lifetime, to be sold for the benefit of the estate of the said Edwin Maurice Smith.
  9. -That the plaintiffs have incurred and paid divers charges and expenses in connection with the premises so conveyed to them, as aforesaid, which charges and expenses are chargeable to the estate of the said Edwin Maurice Smith, under the provisions of the deed of covenant stated in paragraph six hereof.
  10. 0.   -  That the plaintiffs not having been paid the said sums of money expenses mentioned in the third, seventh and ninth paragraphs hereof, or any part of such sum or expenses respectively, have in pursuance and part performance of the covenant so entered into by them as aforesaid caused the said land an premises so conveyed to the said John Wilson and James Alexander Harvie, as aforesaid, to be advertised for sale by public auction on the 30th of January inst.
  11. 1.   - That the plaintiffs are ready and willing to withdraw the said last-mentioned land and premises from sale and to recovery the same to whomever is entitled thereto upon being paid the amount due to them.
  12. 2.   - That particulars of the plaintiffs' claim are hereunto annexed.

   The plaintiffs therefore pray:-

   First - That the defendant may be ordered to pay to the plaintiffs forthwith the amount of their said claim, together with the costs of this suit.

   Second - That the plaintiffs may have such other and further relief as to your Honourable Court may seem meet.

   The case now came before the Court on a motion, on behalf of the defendant, applying for an extension of time to answer the above petition, the day fixed for that purpose being Wednesday next.

   Mr. HENDERSON, the Attorney for the estate, and Mr. DRUMMOND appeared in support of the motion.

   Mr. R. E. WAINEWRIGHT appeared for the plaintiffs, of whom Mr. J. Wilson and Mr. J. A. Harvie were present.

   Mr. HENDERSON explained that the application for further time to answer was made because he did not yet know what course he might have to take in reference to the plaintiffs' claim.

   The COURT thought it was a matter that should be settled by arbitration; but if the parties could not agree to that, of course it would be for the Court to deal with the case.  With reference to the application for further time to answer, there was the important question of mortgages involved; but the parties must have known their rights were disputed, and they had had plenty of time for consideration.  Under the circumstances he thought they could prepare an answer within the prescribed time.

   Mr. WAINEWRIGHT explained that the suit had been instituted with the view to get the matter settled in a pleasant and amicable way.  If, however, the plaintiffs were to be met by pleas in the answer to their petition of a similar kind to those they had heard of before, it seemed to him somewhat doubtful whether the suit would ever come to a hearing.  The receiver of the estate had now had the plain tiff's accounts before him for at least six months, and he could not see how it was possible that he should now require ten days time to answer their claim if there was to be an answer at all.  It seemed to him that ten days was an unreasonable time to allow.  He would have thought five days was ample time from the day of service of the petition for the defendant to file his answer.  The plaintiffs were anxious to get the matter disposed of before the 30th inst.

   The COURT said it was always open to Mr. Wainewright to dismiss the suit without prejudice, but he thought it very desirable some understanding should be come to.  He asked whether an answer could not be filed within the required time.

   Mr. DRUMMOND thought the time was insufficient, and mentioned that it had been discovered that an item of $1,400 had been paid twice.  The discovery was made five or six months afterwards, and w as admitted to have been charged twice.  He mentioned this to show the necessity that existed for sufficient time being granted the defendant to prepare his answer.

   Mr.  WAINEWRIGHT said his clients did not claim that amount.

   Mr.  DRUMMOND went on to say that there were other grounds why the case should not be brought before the Court in a hasty manner.  In the first place the claim set up in the petition was more than a year old, and it might have been brought during that time.  The claim was a large one.  It had reference to certain documents and title deeds of certain property, and in the petition there was an offer to give up the property and re-convey the title to the executors of the deceased upon the plaintiffs' claim being paid.  These were grave questions and required time for consideration.

   Moreover, it was within the knowledge of the Court that the plaintiffs had absolutely put into force another process already.  The property had been advertised for sale, and the plaintiffs threatened to sell it on the 30th of this month.  It was only right that he should mention that this was done before the petition was filed in the Court.  It was a strong proceeding on the part of the plaintiffs, inasmuch as before the suit could be brought to a hearing the property mortgages to them was to be sold by auction. 

   He again characterised the points raised as grave questions for those who had charge of the estate.  It was for them to consider what course they would take - whether they would accept the plaintiffs' offer to pay the claim and take back the property, or whether they would take steps to stop the sale.  Very grave questions were here involved, questions which depended on the validity and value of the deeds given to the plaintiffs by the deceased, and it might turn out that they were not worth the paper they were written upon.  They were questions it was difficult for the defendant to answer in the course of a few days, and if even a fortnight's further time were allowed it would be short enough for the defendant to determine what course he would take.

   Mr.  WAINEWRIGHT said his clients had taken the course they had to be relieved of enforcing their rights under what they believed to be perfectly valid deeds.  If, however, they were not met by any effort on the other side to being the matter to an amicable conclusion, they had no alternative but to go on.  The points raised had been frequently before the receiver, who had had ample time for consideration.

   The COURT again asked the reason why an answer could not be filed within the prescribed time.

   Mr. DRUMMOND said the plaintiffs had not offered to withdraw the threatened sale of the property, which was a serious matter.

   The COURT asked when the petition was served on the plaintiff.

   Mr. HENDERSON said service was made on Friday evening after office hours.  It was six o'clock when the petition was served upon him.

   The CLERK of the COURT said it ewes entered that service was made on the 23rd.

   The COURT said according to that answer day would be next Wednesday.

   Mr. HENDERSON maintained that service must be made within office hours and that Friday could not be reckoned.  Was it reasonable that it should be otherwise?

   The COURT replied that service could be made at any reasonable hour, and he had no hesitation in holding that proper service took place on Friday.

   M r. HENDERSON thought six o'clock in the evening was not a very reasonable time to serve a notice.

   Mr.        WAINEWRIGHT said if there was going to be an answer put in, it did not matter much to his clients whether it was put in in three or thirty days.

   Mr. HENDERSON said Mr. Wainewright could postpone the sale of the property of he liked.

   Mr.  WAINEWRIGHT replied that he should not do that.

   The COURT said that was a different question.  He was not now considering the question of the sale of the property.

   Mr. DRUMMOND asked if Mr. Wainewright would consent to a postponement of the sale.

   Mr. WAINEWRIGHT objected to consent to anything.  So far as he was concerned it was a matter of indifference.

   The COURT said the plaintiffs were now in Court, and the only question now was as to the time the defendant should have to answer their petition.  If Mr. Wainewright wished to get out of the Court he could do so by asking for his petition to be dismissed.

   Mr.  WAINEWRIGHT replied that he did not wish to get out of the Court.

   The COURT said the issue to be joined was perfectly clear, and he could not see why the defendant should not prepare his answer at once.  The questions had been before the court several times, and he thought the answer could be prepared and filed within the reasonable time allowed.  He should make an order that the answer be prepared and filed by Wednesday; and if the defendant came into Court at that time ands showed a necessity for further time, that he had not had time to prepare his defence, then it would be a matter to be considered.

   Mr. HENDERSON presumed that under the circumstances the Court would make it six o'clock on the evening of Wednesday.

   The COURT said it would do that, but thought it was very desirable the parties should try to come to terms.  Could they not have the matter arbitrated.

   Mr. WAINEWRIGHT replied that his clients did not consider there was anything to arbitrate; they considered they had a just and proper claim.  If the defendant was going to raise the question of the sanity of the deceased at the time he bought the goods, his sanity or insanity could not be determined by arbitration.  But if it was  a mere question of the items of accounts that was another matter, and they had no objection to refer the accounts to an arbitrator to look into; but if they were to have the plea of insanity raised, obviously the matter could not be settled by arbitration.

   Mr. DRUMMOND said that was a very grave question to be considered, and one that required time.

   The COURT said it was a question that had been under consideration a long time now.

   Mr. WAINEWRIGHT pointed out that the pleas of insanity had been pleaded in a similar  case to the present one, and his clients had received a letter from the receiver of the estate in which he stated that his legal adviser advised him not to pay the claim  on the ground that the deceased was of unsound mind when he contracted the debt.

   The COURT said the defendant would have until Wednesday at six o'clock in the evening to file his answer.

   The COURT then adjourned.

 

Source: The North China Herald, 29 January 1880

EDITORIAL SELECTIONS.

EXTRAORDINARY LOCAL WILL CASE.

   The probate case of the will of the late E. M. Smith and the numerous side issues involved afford a remarkable instance of the complicated nature of the relations existing between the law courts of the various nationalities represented at Shanghai.  In any part of the world the case would become an interesting one from the amount of property involved, but from the peculiar nature of the conditions prevailing at Shanghai, it had an enhanced interest from the apparent conflict of jurisdictions which it has raised. 

   Edwin Maurice Smith was an American citizen who came to Shanghai many years ago.  In the early days of the Settlements, seeing the need of a go-between between the merchants in the rising port and the one or two banks which had opened branches here, he started as a bill and bullion broker, and as the patriarch of bill brokers in Shanghai was for many years familiarly known as "Bill" Smith.  With a firm conviction of the ultimate importance of the port, he invested his savings in purchasing properties and erecting Chinese houses.  About the years 1860-62 the presence of the Taiping rebels in the adjoining districts and the inability of the Imperial forces to cope with them made the foreign Settlement a city of refuge for the surrounding provinces.  Those natives who were fortunate enough to escape the marauding bands of the rebels made their way to the one spot which afforded a safe refuge, and those who were able to save anything from the wreck of their fortunes conveyed it to Shanghai, where it would be at least safe  from open plunder. The strain thus placed on the capabilities of the Settlements naturally enhanced enormously the rentals of houses, native and foreign, and, as there seemed no reason why this forced prosperity should not continue, the more adventurous spirits invested heavily in landed property.

   The possession of a few mow of ground within the Settlements was in fact considered as a good provision for a life-time, and prices were paid which in more sober moments would have seemed to border on lunacy.  It was under these circumstances that it was determined to remove the old Race Course from its position within the Defence Creek and to offer the land for sale.  Mr. Smith, whose former speculations had been eminently successful, and who was looked up to as an oracle on all questions of land investment, was the largest purchaser; and, influenced by his example, many of his more immediate friends followed his example, and invested all the money they could contrive to lay their hands on in a similar manner.

   One or two Chinese speculators, following in the wake, were prepared to take on lease at enormous rentals the property so acquired, and Mr. Smith, in order to enable them to raise the requisite funds for covering the properties with native houses, became security for large advances from foreign banks.  Those were the days when the Times newspaper made the discovery that El Dorado was at last found, and that its locality was Shanghai.  A general flush of excitement was  felt through the community; each one considered himself a millionaire in posse if not in esse; and it is difficult to foresee what might have been the result had affairs gone on as they were going for another twelve months.

   The sudden inflation, however, had a rude check.  On the 4th December, 1868, Soochow, the last stronghold of the rebels in the lower province, surrendered to the imperialists, and it soon became evident that the golden dreams of the speculators had vanished.  The refugees had no desire, or no ability to remain in the Settlements, where they had neither occupation nor means of earning a livelihood.  The exhaustion of the country at large, it was found, had inflicted a severe blow on the local trade of the place, and the commerce and industries of the port were not as yet equal to the support of so numerous a population as had taken refuge in its neighbourhood.  House-building came to a standstill, and for many years unfinished skeletons with gaunt ungainly timbers marked the outlying portions of the settlements.

   That Mr. Smith should have suffered along with the rest was but natural.  His income was scarcely sufficient to pay the interest on the advances for which he had become responsible and he had apparently to begin life again.  The advances made were so large that the institutions principally concerned in them dreaded the effect of fore-closing, and it was determined to take matters energetically in hand and make the best our of circumstances.

   Mr. Smith had always been a reserved man.  He had never married; it was known though that he had distant relations, the score of some old slight rankled in his mind.  In Shanghai he lived for many years alone; his ideas naturally went back to the time when his opinion was taken on all questions of moment, and his isolation did not tend to make more genial a naturally shy and retiring disposition.  His creditors induced him at this time to retire to Europe, where he spent a few years, and where he made the will which had become the source of so much contention in the local courts. 

   During this time, however, the condition of affairs at Shanghai had been slowly improving.  The port in fact was progressing all the while, but the local accommodation had, in the inflation of the rebel times, been pushed forward in advance of the actual needs of the place.  Mr. Smith returned to China, and with indefatigable energy set himself to rebuild a great portion of the property, which had fallen into disrepair or had been erected in an unsuitable manner.  Nor was this all; with as firm a belief as ever in the essential growth of the place, he invested largely in other properties, raising money for the purpose on fresh mortgages.

   His, in fact, was a mind incapable of standing still.  The fact that his first mortgages were rapidly approaching extinction, and that in a few years he would be clear owner of an enormous property, while it afforded him internal satisfaction, still seemed to compel him to lay out schemes for the future.  What sums of money came in after paying the instalments he devoted to improvements on the properties, and hence with the command of an enormous income he was at times hard pressed for cash for his own immediate requirements.  A life spent amidst so much excitement seemed to need some relaxation, and his bodily health showed some signs of breaking up.  His friends and advisers urged on him the expediency of a trip to Europe, the idea of which fell within his own feelings.

   Still, like many men who have laid out a scheme for their life, he did not like to leave his plans in the hands of others to carry out, and he never could make up his mind to take the final step of leaving the place with whose growth he had been so intimately connected.  The approach if illness and the warnings of his physician led him at last to ponder on the condition of affairs.

   He had lived a long time in Shanghai; he had few friends, because he studiously avoided making them; he had done little good to his fellows, not withstanding the opportunities he had had in life.  These things weighed on his mind, and he endeavoured in a quiet manner to assist those whom he thought deserving.  He thought he had made a few happy in his life, and that by a final coup he would make a community his debtor.  His properties were nearly all clear of mortgages, his rent-rolls were satisfactory, his relations had in his time of need turned their backs on him.  None besides were so intimately related that he felt they had any special claim on him. 

   He prepared therefore, a great surprise and purchased costly gifts which he distributed at Christmas, 1877, to the ladies and children in the community.  The amount expended left him in  debt, but with a rent-roll of some thousands of taels per mensem over and above the interest on mortgages and the instalments to be provided for repayments, this he said did not much matter, and a few months would square off all his indebtedness.

   His disease, however, advanced more rapidly than he had anticipate, and finding that he might be carried off before his debts were discharged, he made over by way of security to his new creators various portions of property. Before the time came for redeeming these new charges he had, however, died, and a new complication of affairs had arisen. For some reason or other, during his life-time, though an American citizen, Mr. Smith had always preferred so far as possible conducting his business with English.  His properties were all registered at the British Consulate, his few friends were mostly English, and the executors named in his will were also English. The very means which he seems to have taken to simplify matters resulted in their greater confusion.

   The English executors took out probate of the will so far as related to property in England in London, but neither being present at Shanghai, no powers existed here to apply for probate at the American Court.  Under the circumstances, the Court appointed a receiver, as the estate could not be left without a manager.  After some delay, one of the two executors named in the will applied by attorney for probate, and after a hearing of the case, the petition was dismissed on the ground that the executor not being an American citizen, was not amenable to the jurisdiction of the Court.

   Meanwhile otter claimants appeared to dispute the will in the person of certain relations who denied its validity on the score that Pitcher and not Smith was the true name of the deceased.  So far the interests concerned were mainly American, and the question of validity of the will was quite within the jurisdiction of the court.

   The assignments of the portions of his property in payments of the debts incurred at and about Christmas, 1877, were however made in the British Consulate, and the assignees held title deeds for the various lots duly transferred to their names.  It was anticipated that these properties would have been redeemed prior to the date or expiry of the assignment deed, as the estate was well able to do so, and the surplus funds amounted to considerably more than the sums at issue. 

   The receiver for the estate, however, took a different view of proceedings.  He alleged that at the time the debts were incurred, and the assignments made, the deceased was of unsound mind and incapable of managing his own affairs.  On the expiry of the term defined within the first of these deeds, the assignees advertised the property for sale by auction.  This brought out from the receiver to the estate a warning to purchasers that such sale would be illegal.

   So the matter rests at the moment, and the question is one of those peculiar complications which from time to time arose to puzzle the most experienced.  We do not seek to prejudge the case, but only state facts well known which have led up to its present conditions.

 

Source: The North China Herald, 5 February 1880

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 2nd Feb.

Before D. H. BAILEY Esq., Consul-General, sitting as judge.

In the matter of the Estate of EDWIN MAURICE SMITH, deceased.

   Today was fixed for the adjourned hearing of a petition filed by Mr. W. V. Drummond, on behalf of F. B. Forbes and F. D. Hitch, petitioners, the legal representatives, under Power of Attorney, of the heirs and beneficiaries under the will of the deceased, for the probate of the will and the issuance of letters testamentary thereon, and for their appointment as trustees of the will. 

   The case was first before the Court on the 17th September, 1879, when Mr. J. J. Henderson, the Attorney for the estate under appointment from the consul-General, but then representing the next of kin and heirs -at-law of the deceased, opposed the application on the grounds that the will was inconsistent, contradictory and impossible of execution; that it was uncertain and unintelligible in its provisions; that it tended to create an estate in perpetuity, which unlawfully infringed and violated the rule against perpetuities; that the true, lawful, and proper name of the person called Edwin Maurice Smith was Edwin Maurice Pitcher, the former name, which was the one in which the will was executed, being false and fictitious; that the deceased was never married and died without lawful children; that the parties he represented were the next of kin and heirs-at-law of the deceased; that the will was made when the deceased was unsound of mind, memory, and understanding, and incapable of making a will; and that the will was unlawfully vested or attempted to vest the estate in persons legally incapable fog taking and holding it.

   On these grounds the Court was asked to declare the will null and void; that the petition of Messrs. Forbes and Hitch be dismissed; and that the estate be settled up and disposed of as the law directed.

   Mr. Henderson also filed a motion asking that a commission be issued to take the testimony of certain parties living in England and America; and Mr. R. E. Wainewright, who represented Mr. John Petrie Bisset, one of the executors appointed under the will, but who had been held to be ineligible for the office by the Court, applied for an adjournment to enable him to receive instructions from his client, who resided in England, as to the course he intended to pursue.

   The proceedings were then adjourned until the 24th September, when the commissions to take evidence in England and #America were granted, and it was decided to postpone the hearing of the case until the 2nd February, by which time it was expected the commissions would be returned.

   The COURT, in now opening the proceedings, said in the matter of the estate of Edwin Maurice Smith the application for the probate of the will and other questions were fixed for hearing this morning.

   Mr. DRUMMOND said in regard to this matter, which had now been standing over for several months, he had filed that morning a motion in the following terms:-

Francis Blackwell Forbes and Frederick Delano Hitch move that the application for probate of the will of Edwin Maurice Smith, deceased, filed by them in this court on the 24th September, 1879, be discontinued.

That motion was signed by himself as Counsel for the said F. B. Forbes and F. D. Hitch, and it was signed, as consented to, by A. Myburgh, Attorney for the children of Wong Teen-yee who were mentioned in the will, and R. E. Wainewright, Counsel for J. P. Bisset, who was also mentioned in the will. Mr. Hanbury having renounced his executorships under the will, the motion was consented to by all the necessary parties; therefore he would ask the Court, on the motion, to make an order and place it on the file of the court, that the proceedings which had been pending up to this time for the probate of the will be discontinued. That, he presumed, would put an end to the proceedings that had been taken by Messrs. Forbes and Hitch for the probate of the will.

   The COURT said the proceedings could be dismissed.

   Mr. DRUMMOND replied that the word used in English practice was "discontinued."  He did not know whether the same word was used in the American practice.  It it was he should prefer it, but if the word "dismiss" was the correct one, of course he would accept it on any terms the court thought  fit to make.  The use of the word "dismiss" tended to show that the application had been heard and dismissed, whereas the word "discontinued" left him in the same position as he was in now with regard to proceedings that might be taken hereafter.

   The COURT intimated that it thought Mr. Drummond could use what phraseology he liked.

   Mr. DRUMMOND replied that the Court had heard the motion, and he would ask that the proceedings taken for the probate of the will be discontinued.  On a motion like the one he had moved, he thought he was entitled to have the proceedings withdrawn on such terms as the Court thought fit to impose.  As to the terms, the expenses to which other parties had been put in consequence of the original motion filed, those expenses should be paid by the party who had put them to the expense by filing the motion and subsequently withdrawing it.  That was only fair and proper, and if any of the parties had incurred any expense, necessarily and properly in conjunction with the motion, he should offer no objection to their being paid; and he would leave it entirely in the hands of the Court to make that part of the order in what terms it thought fit.

   Mr. HENDERSON said that as at the time the application was filed for the probate of the will he made objections to the will on behalf of certain heirs-at-law of the deceased and asked for it to be declared null and void, he now wished to state with reference to that application that the parties had compromised the matter and had agreed among themselves that the will should be declared null and void, and a motion to that effect, he understood, was to be afterwards brought forward. He was not instructed as to the form of the moron, but he had received instructions that a formal and friendly disposition of the estate would take place.  Final instructions had not been given to him, but he was satisfied from the instructions he had received, and from what he had heard from other parties, that a motion would be made shortly to have the will declared null and void.

   The commissions to obtain evidence as to the deceased's sanity had not yet returned, but he desired to discontinue his objections on that point to the will, and he asked for them to be struck out, and also his objections that referred to the deceased assuming a false name.  He wished for these objections to be struck out entirely, and for the matter to rest for the future movement of the parties concerned.   It might be that he should not appear in the matter further than to consent to the formal proceedings the parties had agreed to with the view to set the will aside.

   Mr. DRUMMOND said in reference to the remarks just made by Mr. Henderson he wished to state that he had filed in the Court that morning Powers of Attorney from all the persons interested both outside and under the will, and he had also the consent of the Chinese who were interested, and they included all the parties for whom Mr. Henderson originally appeared.

   The parties for whom Mr. Henderson appeared on the last occasion had since executed new Powers of Attorney authorising other parties to appear on their behalf.  There could not possibly be any contention as to that fact.  He submitted that he was entitled to ask the Court to give him the order he asked for, namely that the proceedings be discontinued, and on that order, he maintained, the objections taken by Mr. Henderson fell to the ground.  They were objections to the probate of the will, and of the order were granted discontinuing the proceedings, there was nothing further before the Court in referenced to that point - Mr. Henderson's injections fell through, and the matter stood that the will was still on the records of the Court, and there was no application for probate and no application to set it aside.

   Mr. HENDERSON said he did not admit that was the understanding of the case.  He distinctly understood that the will was to be declared null and void, and it was with that understanding that he should allow the matter to rest in its present condition, to have the will declared null and void on a substantive motion.

    Mr. DRUMMOND replied that if it became at all necessary he should urge that Mr. Henderson had no right to appear to take any part in the proceedings on the present motion.  He again pointed out that the persons Mr. Henderson appeared for on the previous occasion had all executed new Powers of Attorney which he had put on the file of the court, as well as an agreement signed and executed by all the parties and also signed by Dr. Pitkin, who instructed Mr. Henderson in the matter. Mr. Henderson, he maintained, had now no locus standi.

   Mr. HENDERSON contended that he was the Attorney of record, and the suit was to be settled by a compromise.  When that was done it was possible he would not appear further in the matter; but his status as the Attorney of record had not yet been removed.  He claimed that they could not controvert his position as the Attorney of record for contesting the will.  It seemed to him that at present they were talking about nothing, but simply making themselves figure-heads of the Court.  They had settled and compromised the case on the very ground raised in his objections that the will was null and void.

   Mr. DRUMMOND said Mr. Henderson had informed the Court that he had no instructions to proceed in the matter; and he had simply to ask for the order prayed for in the motion, that the proceedings be discontinued, which would put an end to the question before the Court.

   The COURT asked Mr. Henderson if he objected to the proceedings being discontinued.

   Mr. HENDERSON replied that he did, and went on to say that the case had been compromised and settled.  An application was to be made for the will to be declared null and void, and until something of that kind was substituted, in the absence of instructions he could not consent to the application for probate being withdraw.

   Mr. DRUMMOND asked in what capacity Mr. Henderson appeared.  The first thing to be decided was whether Mr. Henderson had any right to appear - he had no clients in the matter, and therefore he had no right to take any part in the proceedings.

   Mr. HENDERSON replied that he had not seen Mr. Drummond's Power of Attorney.

   Mr. DRUMMOND replied that the Powers of Attorney were all filed.  They were in the most strict, correct, and proper form, and verified in every possible way.  There was no possible way in which they could be impugned, and they included all the parties interested both outside and under the will.

   As Attorney for the estate, representing his honour, Mr. Henderson could not appear to set aside the will; he must have some client, but at the present time he had none.  Therefore he (Mr. Drummond) maintained that he was entitled to the order asked for, and with regard to the subsequent proceedings, he should take them upon instructions.  Mr. Henderson's speculations as to his (Mr. Drummond's) instructions had nothing to do with the Court.

   Mr. HENDERSON repeated that the matter had been compromised, and he had come to the court to consent to the proposition; but he was not going to consent to a withdrawal, as the Attorney of record, until something was substituted for the application on the file to set aside the will.  He thought it was for the Court to consider whether it could discontinue the proceedings after they had gone so far and sent commissions to England and America to take evidence.  All he wished for was something definite to be placed on the file before the present proceedings were discontinued.

   The COURT said he would now hear any other motion Mr. Drummond had to bring forward.

   Mr. DRUMMOND replied that the next motion he had to make was as follows:

Caroline M. Seymour, Evelina V. Pitcher, Emily K. Pitcher, Deborah Everly, Minerva Pitcher, Isabella Walker, Elizabeth Walker, Amanda Walker, Eliza Warren, Clement Brandenberg and Ellen Brandenberg by William Venn Drummond their Counsel, move that an order be made appointing and substituting Francis Blackwell Forbes in the place and stead of Francis Parkman Night as receiver of the s aid estate, and that the said F. P. Knight be ordered to make over and transfer forthwith the possession of the s aid estate to the  said F. B. Forbes.

He had signed the motion as Counsel for the parties mentioned, and, like the previous motion, it was consented to by A. Myburgh, Attorney for the children of Wong Teen-yee, and R. E. Wainewright, as Counsel for Mr. J. P. Bisset; therefore, he thought, it was hardly necessary for him top say anything more than was actually contained in the motion itself. It was within the knowledge of his Honour that when the estate first came into the possession of the Court under the laws of the United States and the treaties with China, the Court appointed, in the first place he believed, Mr. Henderson to give legal advice in connection with the management of the estate.

   Mr. HENDERSON - With the knowledge and sanction of the Department at Washington, you might add.

   Mr. DRUMMOND went on to say that subsequent to Mr. Henderson's appointment, the Court appointed Mr. Knight as receiver, and from that time up to the present time Mr. Knight had been in possession of the estate and had managed it under his appointment by the Court.  That was merely the history of the past.

   He had now filed Powers of Attorney from all the persons interested under the will and outside the will, residing both in England and America, and he had the consent of the other parties interested - The Chinese represented by Mr. Myburgh, and M. J. P. Bisset, for whom Mr. Wainewright appeared. The documents to which he had referred were all on the files of the court, and he presumed the Court would move in the same direction as all the parties interested, and appoint the persons they had selected.  There was also on the file of the Court an agreement as to the future management of the estate, and that agreement, in substance, was simply this, that all the parties had very wisely agreed among themselves what should be done with the property.  They had decided mot to fight or litigate their various claims, but had come to an amicable understanding how the property was to be managed, and by whom it should be managed.

   The income, the rents and profits, arising from the property were to be dealt with in America by a firm in New York called Messrs. Condert Brothers, of great eminence, and the agreement also provided as to who should manage the estate in Shanghai, and it was to be managed by the persons for whom he appeared, Messrs. F. B. Forbes and F. D. Hitch, or the well-known form of Messrs. Russell and Co.  That was how the parties interested under the will and outside the will had agreed to act, and he thought it would recommend itself as a very wise arrangement on their part.

   Undoubtedly the will was bad, and proceedings would be taken in due course to set it aside.  At the present moment complete instructions for that course to be taken were not present in Shanghai; they had not actually received their instructions from London.  The instructions from America were complete, and they had telegraphic information that instructions from London were on the way out.  But, as yet, they had not full instructions to take the definite step to set the will aside, therefore he considered it proper to let that question stand over until complete instructions arrived. That was the reason why he did not at the present moment apply to the Court for the will to be declared null and void; and he thought the course he had adopted was the proper one under the circumstances.

    If he were now to apply for  the will to be declared null and void and a decree to that effect was given, he should then move that the parties he represented, Messrs. Forbes and Hitch, be appointed administrators of the estate; but until the will was declared null and void that was not a proper course to adopt.  The proper course to take was that laid down in the motion, namely, the substitution, as receiver, of Mr. Forbes in the place of Mr. Knight until the subsequent step could be taken.  If his Honour considered it necessary he would cite authorities on the point.  He took it, however, that it was hardly necessary for him to do so, and therefore he would move, on behalf of the parties named in the motion, that Mr. F. B. Forbes be appointed the receiver of the estate in the place of Mr. Knight.

   He had also to ask that the order be made that possession and management be made over to Mr. Forbes at once; at the same time treasonable time could be allowed to Mr. Knight to wind up any current matters that might be pending.  There was no desire to do anything that might be troublesome in the matter or press unduly on the position of Mr. Knight; but the management of the estate should be made over at once to Mr. Forbes.

   Mr. HENDERSON said with referenced to this motion he appeared as the legal adviser of the Consul-General in the matter of the estate.  Mr. Knight, as the receiver, was answerable to the Court, and was under the special orders and directions of the Court.  The receiver acted in a special capacity and was now a party to suits pending in different Courts; he was the plaintiff in a suit in the British Court and defendant in one of the two suits in this Court. As administrators, Messrs. Forbes and Hitch could sue and be sued, and in view of their application to be appointed as administrators of the estate, why was there the necessity of substituting Mr. Forbes for Mr. Knight?  Could not they wait a short time until their final instructions arrived.  He merely stated this as the Attorney of the estate for the advice of the Court, and being the person who originally applied for the appointment of a receiver.

   For reasons the Court well understood he did not see the necessity of making a substitution of Mr. Forbes as receiver in view of the approaching application for the appointment of administrators.  The Court and the Consul-General had a great responsibility yet, and he failed to see the necessity of complicating matters by making one appointment now and others after a mail or two.

   Mr.  WAINEWRIGHT said as he was present he would draw attention to the terms of Mr. Knight's appointment as receiver, because they referred to certain rights of the Hongkong Fire Office and the Chartered Mercantile Bank.

   Mr. DRUMMOND explained that his application was only for the substitution of Mr. Forbes for Mr. Hitch, and the rights of no parties who were now protected would be interfered with.

   The COURT - When all parties interested apply for the appointment of a particular person as received, certainly it is an application that the Court must take notice of and act upon.  The rule is well established, and I think there can be no controversy in law upon that proposition - the Court must take notice of an application of the kind.  The only doubt in my mind is as to the discontinuance of the suit inasmuch as issue has been joined.  I will take all the papers in the case, look over them, and make an order in a day or two, of which I will give you notice.

   Mr. DRUMMOND asked the Court what was the difficulty felt.

   The COURT - Issue has been joined on the application for the probate of the will.  There is, however, this consideration.  Mr. Drummond has the consent of the Chinese as well as that of the others.

   Mr. DRUMMOND produced the Powers of Attorney, and said he wished to put the case in such a shape that there could be no mistake hereafter.

   The COURT would look over the papers.

   Mr. DRUMMOND said there was one further motion he had to make, and it was as follows:-

Caroline M. Seymour, Evelina V. Pitcher, Emily K. Pitcher, Deborah Everly, Minerva Pitcher, Isabella Walker, Elizabeth Walker, Amanda Walker, Eliza Warren, Clement Brandenburg and Ellen Brandenberg by William Venn Drummond their Counsel, move that the appointment of Mr. J. J. Henderson, dated the 16th day of December, 1878, as the Attorney of record for the said estate may be cancelled this day.

It was signed by himself as representing the parties named, and it was consented to by Mr. Wainewright, as the counsel for Mr. P. P. Bisset.  He had not had time to take it to Mr. Myburgh to obtain his consent on behalf of the Chinese.  He had no doubt Mr. Myburgh would consent, and he would obtain his signature if the Court thought it necessary that he should do so.

     Mr. HENDERSON said the probabilities were that Mr. Myburgh would not sign it, if he were asked; he would not bother himself about what did not concern him.

   Mr. DRUMMOND believed Mr. Myburgh would consent to it as soon as he was asked.  His Honour had on the file of the Court the terms of Mr. Henderson's appointment, and there was now no necessity for the Court to have a legal adviser in connection with the estate.  The parties had chosen their own representatives, who could act for themselves.

   Mr. HENDERSON said in this connection he had nothing to say except to remark that so long as the estate remained in the hands of the legally consisted authorities under the law of the United States, it was for the Consul-General to consider whether he would have a legal adviser or not.  While the Consul-General was in charge of the estate he could choose his own legal adviser.

   The COURT said he would look over the papers and give his decision in the course of a few days.

   Mr. HENDERSON was extremely surprised that such a motion should be made, after the application to hand over the estate.  What necessary was there to dismiss the legal adviser appointed by the Court when the estate was to be handed over?  He thought there was a good deal of cheek in the suggestion - the most cheeky thing he had ever heard of.

   The Court then adjourned.

 

Source: The North China Herald, 4 March 1880

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 1st March.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge, and Messrs. J. H. WISNER and F. G. HASKELL, Assessors.

In the Matter of the estate of EDWIN MAURICE SMITH, Deceased.

   By an order of the Court granted on the 20th ult., the appointment of Mr. F. P. Knight, as receiver of the estate of Edwin Maurice Smith, terminated at the end of February, and this morning was fixed for the hearing of an application by him for compensation.

   Mr. Knight read a statement from which it appeared that he was appointed receiver on the 19th December, 1878, which (sic) liberty to do any, and every thing, needful and proper, for the preservation of the estate.  From that time until the present he had had the entire control and management of five-sixths of the estate, which was the most valuable one under any Consular jurisdiction in the East.  The receivership being now about to pass into other hands, he now came into Court to ask for reasonable compensation for his care and services in connection with the estate.

   Mr. Knight said his claim was for Tls. 25,000, and he moved the court, in view of his valuable and important services, to approve of his claim as correct and reasonable, and to grant an order on Mr. Forbes for payment of that sum less Tls. 3,477 already received. Mr. Knight argued that his services in the interests of the estate had been exceedingly valuable, important, and successful, inasmuch as he had not only kept the estate intact and materially improved it, but by his effective management of the many claims against it in that Court he was now able to turn it over free from all legal complications and other questions, and that his successor had literally nothing to do but collect the rents, or sell the property, and to recover his compensation. No less than forty-eight claims against the estate had been settled in the United States Court.

   In support of his claim he affirmed that he had effected during the twelve months of his term of office, 1516 mire lettings than were effected by the deceased during the twelve months prior to his death, and that he had increased the rental during the period mentioned by the amount of $7,500.  Under his management the estate had been watched and kept in repair at a comparatively small cost, and many improvements had been made which had contributed towards the increased rental and value of the property, and which increase, it should be borne in mind, must continue.  The management of the 832 houses had required the greatest care and attention, to say nothing of the conduct of eight large sales by auction, the litigation that had ensued, and the questions concerning taxation, insurance, etc., which were necessarily involved.

   Mr. Knight informed the Court that during the term of his management he had advanced to the estate the sum of Tls. 8,445, to pay fire insurance, premiums, and release of mortgages of valuable properties, and for this, he said, no charge for commission or interest would be commensurate with the benefit the estate had received by the accommodation afforded.

   The litigation against the estate had been, as the Court was aware, incessant, and no little vigilance had been demanded in watching the various interests.  He laid great stress in the matter of the claim referring to the Loo Foong-kwang case, which involved a sum of $327,000, which was nearly one-third of the value of the whole estate. In this matter he assured the Court that he had by his representations to the many Chinese who had become interested in it, and who had consulted him, and by the credence, belief, and trust, which these parties had in his opinion s from the fact of his long experience and reputation as a Consul and Judicial Officer, controlled it, and, in fact, warded off a much more serious litigation than had actually taken place.

   Mr. Knight continued to say that the value of the real estate was as follows:-

 

Lay PropertyTls. 94,690
Yang-king-pangTls. 207,647
BuissonetTls. 21,008
WainunTls. 24,922
LouzaTls. 7,120
SiccaweiTls. 1,371..23
Old Race CourseTls. 271,060.75
  
TotalTls. 627,818.91

 

Deducting from the above the property in the care of Mr. Lester, valued at Tls. 121,898, there was left Tls. 495,920.98, or, allowing for the improvement since the above valuation, he estimated the value of the property in his charge, in round numbers, at Tls. 500,000.  He might also inform the Court that he considered the property at this rate was undervalued.  The cash showed that Tls. 68,415 had been collected and disbursed.

   He then called the attention of the Court to the revised tariff of commissions and brokerages adopted by the Shanghai General Chamber of Commerce, and which allowed 5 per cent for managing estates and collecting rents.  He further referred the Court to regulation  22, paragraph 56, of the United States Consular regulations, entitled £Estates of Deceased American Citizens," and begged to point out that he had performed all the services for the estate which were mentioned therein, and had performed them in the stead of the Government.

   He was therefore entitled at least to the same compensation which would have been exacted by the Government.  The estate was so large, and the obligations so many, as to make it wholly impracticable for the Consul to manage and control the estate except by exercising his judicial functions and appointing a receiver.  He had, he declared, during his term of office, performed all that would have, during the same period, devolved upon the two trustees and executors appointed by the will of deceased, and in consideration of which, with the addition of some comparatively easy routine work, in the future they were to receive one-fifth of the income of the deceased's estate for life, with a furnished house, and salaried manager.

   The COURT was then cleared for the consul-General and the Associates to consider the application.  After a brief deliberation the doors were opened, and

   The COURT said - In this case we are agreed that compensation should be allowed to the receiver, Mr. Knight, in accordance with the tariff of fees as provided by the President of the united States under the Act of Congress, and there will be an allowance of 5 per cent on the amount that has been collected and disbursed, and an allowance of 2 ½ per cent on the balance of the estate that is turned over, or that part of the real estate which has been under the control and management of the receiver.  In this we follow Rule 56, and accept it as binding in this case.  In addition to this we are of opinion that there should be a recommendation to the legal representatives for additional compensation, and we leave that to their discretion.

   For my part I may say that I know from my own knowledge of the management of the estate by Mr. Knight, and I don't hesitate to say it, that it has been managed, I think, with exceptional skill, and with most perfect integrity; and that he has devoted his entire time to it; and I think that those who are coming in to type possession of the estate should appreciate very highly what he has done.  I say this sitting here as Judge of this court. I recognize what he has done, and what he has done has been done w ell and done thoroughly with skill and integrity. Which is a credit to himself.  I have no hesitation in saying that.

   Mr. KNIGHT - I am much obliged to your Honour and the Associates.  Of course I do not for a moment say your decision is not acceptable to me.  I feel some satisfaction that it should occur to you that the attention of my successor, or the legal representatives of the estate, should be called to the success with which I have managed the litigation of the estate.  That does not seem to be provided for under the United States Consular regulations, but that of course I leave to the future.

   The COURT -We think under the circumstances we age bound to follow the rule laid down, and by following that there can be no question as to its being an allowance within the law.  The additional remuneration that we recommended to those interested in the estate is supported by the tariff of fees and scale of commissions of the Shanghai Chamber of Commerce, dated 7th February, 1878.  That seems to be the rule adopted by the Chamber of Commerce, but it is not the law which controls this case.  I think when it is brought to the notice of those who are coming into the estate that they will be only too glad to instruct their agent to give additional compensation, e specially upon the recommendation made here, and which is joined in by both the Assessors.

 

Source: The North China Herald, 4 March 1880

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 28th February.

Before D. H. BAILEY, Esq., Consul-General, sitting as Judge.

JAMES JOSEPH HENDERSON

v.

DEBORAH EVERLY, EMILY PITCHER, LIZZIE WALKER, AMANDA WALKER and BELLE WALKER.

   Mr. HENDERSON explained that this was a motion in a suit brought by him against the contestants of the will of the late E. M. Smith, to recover compensation for the professional services had rendered. 

   The case now came before the Court on an ex parte motion for a restraining order in the nature of an injunction, and for the appointment of a special receiver of the property, or rather the funds of the defendants arising out of their share of the estate, pending the determination of his suit.  He would first read the petition and the affidavit he had filed in support of it.

   The petition of the plaintiff respectfully shows to this Honorable Court:-

  1. -That he is a citizen of the State of Oregon, United States of America, temporarily residing at Shanghai, in the Empire of China, and is by profession an Attorney and Counsellor-at-Law, being a member of the Bar of the State of New York, of the State of Oregon, and of the United States Distinct and Circuit Courts for the State of Oregon.
  2. - The the defendants Deborah Everly, Emily Pitcher, Lizzie walker, Amanda Walker and Belle Walker, are citizens of the United States, residing at the city of Philadelphia, in the United States.
  3. - That in or about the month of August, 1879, the defendants, by and through their agent and Attorney, Thomas C. Pitkin, a citizen of the united States, residing at the city of Detroit, in the State of Michigan, United States, employed and retained the  plaintiff as an Attorney and counsellor-at-Law, to oppose probate of, and contest and set aside, an alleged last will and testament of Edwin Maurice Pitcher, otherwise Edwin Maurice Smith, who died at Shanghai aforesaid, on or about the 19th day of November, 1878. Leaving thereat an estate in lands, houses, and other property, valued at 659,422 taels, Shanghai sycee.
  4. -That the defendants are heirs-at-law and next-of-kin of the said deceased Edwin Maurice Pitcher, but were not mentioned in or provided for by his said alleged last will and testament.
  5. -  That on the 21st day of August, 1879, an application was filed in the above-named Court on behalf of Caroline M. Seymour, Emily V. Pitcher, and Belle S. Sherlock, heirs-at-law and beneficiaries under the said will of said Edwin Maurice Pitcher, deceased, for the probate of said alleged will, and for the appointment of new Trustees thereunder, and the 17th day of September, 1879, was fixed for the hearing thereof.
  6. - That after due consideration and preparation, the plaintiff, under and in pursuance of his aforesaid employment and retainer by the defendants, appeared in said Court as such Attorney and Counsellor on said 17th day of September, 1879, and on the 23rd and  24th days of the same month, and opposed the said application for probate of the  said alleged will and appointment of Trustees, and prayed that the said application be dismissed, and that the said alleged will be declared illegal, null and void, and continued the prosecution of the said contest up to the 2nd day of February, 1880, the time fixed by the Court for the final hearing thereof.
  7. - That during the pen den cy of the said contest, and on or about the 21st day of October, 1879, with knowledge and notice of the aforesaid proceedings, the aforesaid Caroline M. Seymour, Emily V. Pitcher, Belle S. Sherlock, and the defendants herein, all all other remaining heirs-at-law of the  said Edwin Maurice Pitcher, made and entered into an agreement in writing and under seal whereby the aforesaid application for probate of sais alleged will and appointment of Trustees under it should be withdrawn and discontinued, and the defendants should receive one-fourth of the estate of the said Edwin Maurice Pitcher, all the said parties being advised and believing that the said alleged last will and testament of said Edwin Maurice Pitcher was illegal, null and void, as was contended by this plaintiff as aforesaid.
  8. - That on the said 2nd day of February, 1880, the aforesaid applicants, for probate of said will and appointment of Trustees, by their Counsel, in open Court, moved for the discontinuance of their said application, and the defendants, then and there, through their then Agents and Attorneys, Francis Blackwell Forbes and Frederick Delano Hitch, and by Counsel in open Court, notified the plaintiff that he was unauthorized to further prosecute the said contest, and otherwise, and at other times thereabouts, through their said Agents and Attorneys, and by Counsel, informed this plaintiff that his further services were not required on their behalf, and said application was afterwards discontinued on their motion.
  9. - That notwithstanding the aforesaid facts, the plaintiff moved for entry of a decree in accordance with the prayer filed with his objections to the probate of said will, and is freaky and willing to perform any further service necessary to fully complete the case for which he was retained and employed as aforesaid.
  10. 0.   - That the said services so preformed by the plaintiff under his aforesaid employment and retainer for the defendants are reasonably worth the sum of Taels ten thousand Shanghai sycee.
  11. 1.   - That the defendants have neglected and failed to pay the same though requested so to do.

The plaintiff, in consideration of the premises, prays that judgment may be given against the defendants for taels ten thousand, Shanghai sycee, with costs of this suit.

   The following is the affidavit filed by Mr. Henderson in support of the foregoing petition:-

I, J. J. HENDERSON being duly sworn, say that I am the plaintiff in the above entitled suit.  That to the best of my information and belief the defendants are citizens of the United States, now residing in the State of Pennsylvania, United States.  That they are indebted to the plaintiff in the sum of Taels ten thousand, for the professional services performed by the plaintiff for them mentioned in his petition in this suit.

   That to the best of my knowledge, information, and belief, the defendants are without means with which to satisfy the claims of the plaintiff, save and except their share and interest in the property of Edwin Maurice Pitcher, otherwise Edwin Maurice Smith, mentioned in said petition.  That the plaintiff believes he has at law a lien upon the share of the defendants in said estate for the services mentioned in said petition.

   That the defendants and others, through their Agents and Attorneys in Shanghai, have appointed one of the Attorneys in fact of the defendants, F. B. Forbes, Esq., Shanghai, as receiver of the estate mentioned in said petition, and that he is about to take possession of the same. 

   That the plaintiff is informed and believes that it is the desire and intention of the said Attorney or Attorneys in fact of the defendants and others, to try to get the property of the said estate out of the hands and away from the control of theUnited States Consul-General, and of the United States Court for Shanghai.

   That there is great danger that the plaintiff will lose his said lien upon the property, and even his entire claim, if said property is allowed to pass in to the hands of their said Attorney in any capacity.

   That to the best of plaintiff's information and belief, the defendants are legally entitled to one-fourth of the property of the estate of said Edwin Maurice Pitcher, or Smith, mentioned in said petition, subject to a pro rata contribution for the payment of the debts of the estate and expenses incurred for or the prevention of litigation concerning the said estate.

   The plaintiff further says that the employment and retainer of the defendants mentioned in said petition was accepted by him upon a contingent compensation and upon the understanding that he should depend upon the property involved in the suit for which he was retained for such compensation.

   Mr. HENDERSON, during the reading of the affidavit, remarked that it had been stated in open Court that one of the proposed receivers should be appointed an administrator; therefore he would take personal control of the estate.  In fact, the estate would pass out of the control of the Court.

   The COURT said if an administrator was appointed, he would be under the jurisdiction of the Court.

   Mr. HENDERSON did not mean that the administrator would be beyond the jurisdiction of the Court, but the administration of the estate would not be under the control fog the Court.  For instance it might be that Messrs. Russell and Co. might have purchased the entire estate, and if that were so, it would go into the hands of Mr. Forbes only nominally a receiver and it would endanger his lien.  He was not in a position to swear that Messrs. Russell and Co. had purchased the estate, and he only supposed such might be the case.

   Upon the facts set forth in the petition and affidavit, he maintained that he not only had a lien at law, but by a special arrangement between the parties he had a claim for reasonable   compensation in the matter.  It was within the knowledge of the Court that he had appeared in the case and had rendered certain meritorious services, and there could be no doubt that he had a right to something.  The question was, how much he was entitled to receive?

   In support of his proposition that he had a lien at law on the estate, he cited authorities on which he claimed that from the moment of his receiving his retainer, the property involved was chargeable for his expenses.  He explained that the gentleman who instructed him in America had retold him that the present defendants were women who were earning their living b y their needles, and that he must depend upon the property they were suing for to obtain his compensation.

   One of the motions he now brought before the Court was in the nature of an injunction, and the other was a kind of temporary injunction, as it were, until the other motion could be disposed of.  He then read the first motion and the supplementary one, which were as follows:-

  1. - Upon the facts stated in the appended affidavit, and in the petition of the plaintiff in this suit, the plaintiff moves the Court that a special receiver of the rents and profits accruing to the estate of Edwin Maurice Pitcher, or Smith, be appointed to collect and hold the same pending the determination  of this suit.
  2. -  Or that a special receiver be appointed to collect and hold the rents and profits of the said estate until the defendants' share thereof shall amount to a sum sufficient to satisfy the claim of the plaintiff.
  3. -Or that a special receiver be appointed to collect and hold the defendants' share of the rents and profits of said estate until the amount thereof is sufficient to satisfy the claim of the plaintiff.
  4. -  Or that the rents and profits of said estate be collected and held by the Consul-Genital for the United States at Shanghai in pursuance of section 1709 of the Revised Statutes of the United States.
  5. - And that the order for the transfer of possession of the properties of said estate to Francis Blackwell Forbes, as receiver of the estate of Edwin Maurice Smith, or Pitcher, deceased or otherwise, be suspended and held over until the determination of this suit.

   The second motion also asked for the appointment of a special receiver, and that the estate be not handed over to Mr. F. B. Forbes until the motion given above was disposed of.  It was on this second motion that the matter now came before the Court.

   Mr. HENDERSON said it would thus be seen that his present application was to hold over the estate until the original motion was disposed of.  He did not think it necessary for him to cite any authorities to show that where a suit had been taken with reference to property under a claim of lien, an injunction could be granted and a special receiver appointed, inasmuch as it was a familiar practice of all Courts of Equity in the United States.  If the Court thought it necessary for him to cite authorities, he would do so, but at present he would merely refer to the practice of this Court, and the first was the case of Hill v. Yates in which an injunction was granted.

   The COURT said that in junction was granted by consent of the parties.

      Mr. HENDERSON replied that it was a temporary injunction, and that the only consent given was that of the alleged owner's representative.  That suit was filed as long ago as April last, nearly twelve months ago, and under an interim injunction the Court had continued to collect the money accruing from the property and the sum collected now amounted to many hundreds of dollars, which the Court now held.

   The COURT explained that the money was held pending the decision of the Courts in the United States.

   Mr. HENDERSON did not know how that was, but maintained that he was entitled to the same remedy.  He next referred, as a precedent, to the appointment of Mr. F. P. Knight, as receiver of the estate of Mr. E. M. Smith, and pointed out that in that instance the Court made the appointment without a suit being commenced, but suits were threatened, and he, (Mr. Henderson) as the Attorney for the estate, laid before the Court sufficient grounds to justify the Court in making the appointment.

   These were the two precedents upon which he relied, and he asked the court whether it could deny to him the remedy the laws of the United States afforded to him as clearly shown by the authority he had cited.  He did not claim to be anything more than a citizen of the United States, and as such, claimed equal justice and equal protection.  He was not a tapian correspinding with Messrs. Baring Brothers.  He asked for no favours of the Court, and nothing more than what he had just said, viz., legal protection and the justice the Court guaranteed.

   The COURT said it was not necessary to go into that question.

   Mr. HENDERSON replied that unfortunately he was not a rich man; he was not able to hire Counsel on his behalf; he appeared this time for Mr. Henderson, the plaintiff, and had volunteered to do so without charging him anything.  He maintained that the rents and profits of the estate had been collected all right and proper, and he failed to see the necessity of charging the estate any longer with a 5% extra commission.  It was the duty of the Consul-General to collect the moneys, pay the rents, and transmit the balance to the Treasury.

   Mr. HENDERSON then entered into personalities which he based on remarks made by Chief Justice Smale in a case reported in the Hongkong Daily Press on the 5th February.

   Mr. DRUMMOND, who represented Messrs. Forbes and Hitch, appealed to the Court, saying that if Mr. Henderson were allowed to continue, he should leave.

   The COURT, who had previously told Mr. Henderson he would not listen to personalities, insisted that Mr. Henderson should confine himself to the legal bearing of the question.

   Mr. HENDERSON repeated the remarks he had made, and Mr. Drummond again appealed to the Court and the Court again told Mr. Henderson that he could not listen to such observations.

   The discussion assumed an unpleasant phase, and the Court called for the Marshal.

   Mr. HENDERSON said he was responsible for any remarks that he had made, and claimed that as a Counsel at the bar of that Court, he had rights which he was going to maintain.  This was an ex parte motion, and he wished it to be granted.  He did not wish Mr. Forbes to be appointed as special receiver; he had no objection to Mr. Knight; all he wanted was that some indifferent party should be appointed.  He knew he was right, and he would leave the Court to do its duty.

   The COURT said he would listen to Mr. Henderson as long as he confined himself to the legal argument, but he would not listen to him when he introduced personalities of the nature he had done.

   Mr. HENDERSON said he was not afraid of personalities.  Apparently he was about to repeat them, when

   The COURT said the motion was overruled, ordered the Court to be adjourned, and left the bench.

   As the CONSUL-GENERAL was leaving the court, Mr. Henderson asked for an attachment against "these parties" in accordance with the terms of the Ministerial regulations.  He said he had the bond and everything was in order.

   The parties then left the Court.

   Mr. Henderson subsequently filed his attachment.

 

Source: The North China Herald, 20 July 1880

IN THE U.S. CONSULAR COURT FOR THE DISTRICT OF SHANGHAI.

Shanghai, 16th July.

Before O. N . DENNY, Esq., Consul-General, sitting as Judge.

Re  the Estate of E. M. SMITH, deceased.

   Mr. HENRY LESTER made an application to the Court to release him from his position as receiver of part of the above-mentioned estate.  He informed the Court that on the 18th December last he was appointed by the Court receiver for a portion  of the estate of the late E. M. Smith, deceased, mortgaged to the Hongkong Fire Insurance Company, the mortgagees having wished that this portion of the estate should be kept distinct from the rifest of it.  The mortgage having been paid on the 3rd of June, the reason for his appointment no longer existed.  He therefore made the present application  and wished to have his security returned to him.  An arrangement had been made between him and the receiver for the other portions of the estate by which he would receive Tls. 3,500, if the Court approved.

   His HONOUR said the court could have no objection to the course proposed being taken.  The order by which Mr. Lester's application was granted would of course release him from any further liability.

   Mr. Forbes, who is the receiver appointed by the U.S. Court for the remainder of the estate, in answer to a question from his Honour, said that he had examined Mr. Lester's accounts as receiver, and found everything satisfactory.  He had arranged with Mr. Lester that he should have Tls. 3,500, which amount would cover all demands as special receiver and in respect of his own claims.  He thought the proposed arrangement would be satisfactory to all parties concerned.

   His HONOUR asked what was the mount of individual claims, not including compensation for services rendered.

   Mr. FORBES thought the amount was Tls. 875, but he had not the figures with him.

   His HONOUR told Mr. Lester that he would now be released from further liability, and in his capacity of receiver he would receive Tls. 8,625 and Tls. 875 for personal claims, and the Court would not direct that the property recently in his hands should pass in to the hands of Mr. Forbes.

   Mr. Drummond, who was present on behalf of the estate, understood that Mr. Lester had originally put a petition on the file, but he was not sure of it.  If that were so, it might be well to have it placed on the record that the claim was settled for the sum of Tls. 875.

   His HONOUR expressed his assent and an order was made accordingly.

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