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Colonial Cases

Yu Hi v. O’Rourke, 1893

[succession - part performance]

Yu Hi v. O'Rourke

Supreme Court for China and Japan
Hannen CJ, 27 March 1893
Source: North China Herald, 30 March, 1893

LAW REPORTS.
H.B.M.'S SUPREME COURT.
ON APPEAL FROM H.B.M.'S COURT AT TIENTSIN.
Shanghai, 27th March.
Before N. J. Hannen, Esq., Chief Justice.
YU HI v. D. O'ROURKE.
This was a case in which Yu Hi, the plaintiff, appealed from a decision of H.B.M.'s Court at Tientsin, given in an action against D. O'Rourke, defendant, relating to probate of the Will of the late Captain Grant. The circumstances of the case, which were somewhat remarkable, were set out in the following petition of appeal.
  The petition of appeal of the above-named appellant and plaintiff from the judgment of Her Britannic Majesty's Court for Tientsin of the 31st day of May, 1892.
  Showeth as follows:
The appellant filed her petition, prepared without professional legal assistance, in Her Britannic Majesty's Court at Tientsin on or about the 30trh day of April 1892.
  The appellant in such petition alleged that she had been in the service of William Grant, deceased, a British subject, and ac ted as his housekeeper and sick nurse for over ten years, namely, from the 22nd of September, 1881, to the 17th of January, 1892; that she had received no wages, that no written contract existed between the appellant and the said William Grant; but that the said William Grant always recognised the claim of the petitioner to compensation, and repeatedly declared that he had executed a Will in the appellant's favour bequeathing to her a legacy of four thousand taels.
  And the Appellant further alleged that such a Will was executed by the said William Grant in the month of August 1891, and that if proper search were made the said Will would probably be found or at least evidence obtained of its fate.
  And the appellant further alleged that failing production of the Will the intention of the testator with regard to the appellant could be established from the mouth of several credible witnesses.
  And the Appellant further alleged (in paragraph 8 of her petition) that failing the validation of the legacy of four thousand taels, evidence of the late William Grant's recognition of the claim of the appellant and his intentions regarding her could be adduced, fully  warranting her in pressing her demand for dollars three thousand and ninety-six and fifty-eight cents, as the appellant therefore prays that the defendant Daniel O'Rourke the executor to the estate of the said William Grant should be compelled to pay to her the said sum.
  The defendant filed his answer to the  said petition on the 28th day of April, 1892, and therein, after admitting that the appellant rendered the services as alleged in her petition, but stating that he was not aware of the length of time during which they were rendered and after stating that he (the defendant) had no knowledge as to the allegation of the appellant that she received no wages, and that there was no written contract between the said William Grant and the appellant, the defendant alleged that in October 1890 the said William Grant told him (the defendant) that Yu Hi the appellant was amply provided for and that she had three or four thousand taels in the bank.
  And the defendant in such answer further alleged that he had no knowledge of any Will (of the said William Grant deceased) other than the one then in the Court (Being a Will executed in October 1890 and registered in H.B.M.'s Consulate at Tientsin.)
  And the defendant in such answer further disputed and denied the claim made in paragraph 8 of the appellant's petition on the following grounds:
That he believed petitioner was provided for by the said William Grant.
That the appellant accepted the following offer of a further provision defendant made for her as executor of the Will (registered as aforesaid) of the said William Grant.
He promised to pay $200 for her liberty.
He promised to allow her $20 per month.
He promised to make a further provision for her in his own will.  Which offer and promises he thereby begged to withdraw, and the defendant therefore prayed that the petition of the appellant might be dismissed, and the appellant might be decreed to pay the costs.
This suit came on for hearing in Her Britannic Majesty's Court at Tientsin before Byron Brenan, Esquire, and William McLeish and Edward Cousins, Esquires, Assessors, and without Jury on the25th of May last, and the said Judge delivered judgment on the 31st day of May last whereby he found that the plaintiff was entitled to two hundred dollars, each party to pay their own costs. The Assessors aforesaid in their statement in writing appended to the said judgment decided that they assessed the appellant's claim on the estate of the said William Grant (Deceased), at eighteen hundred dollars; That is to say as twenty-five dollars per month for a period of six years.
  The appellant claims that upon the facts set out in the pleadings and upon the evidence adduced at the trial she is entitled to probate of the Will or Codicil duly executed by the said William Grant, Deceased, in or about the month of August 1890, and payment of the legacy of four thousand taels therein contained, or in the alternative, to payment out of the estate of the said William Grant deceased of the sum of four thousand taels which the said deceased agreed to pay to the appellant as consideration  for the services by the defendant admitted to have been rendered. Or in the alternative that the appellant is entitled to the said sum of three thousand and ninety-six dollars and fifty-eight cents as claimed by her as payment for services rendered by her as aforesaid. The appellant is therefore dissatisfied with the said judgment upon the following grounds:
That the judgment was contrary to the weight of evidence given on the hearing.
  That the judgment improperly finds that "neither of the appellant's two witnesses who testified  that in the middle of August 1890 they witnessed the signature of the deceased to a printed document the contents of which were turned down or covered over knew what the nature of the document was."
  That the judgment improperly finds that "there is no evidence to show in whose favour this supposed Codicil was made or what was the amount of the legacy."
The appellant and plaintiff therefore prays:
That the judgment now appealed from be varied and that it be ordered that judgment be entered for the appellant in the original suit with costs of this appeal and of the Court below, and that should the Court be of opinion that the petition as framed is defective in not claiming to have probate of the Will or Codicil in question that leave be given to the appellant to make the necessary amendments to the Petition for that purpose, &c.
  That such Order be made as to the Court shall seem meet.
Mr. H. P. Wilkinson appeared for the appellant, but the respondent neither appeared nor was he professionally represented.  The plai9ntiff, an intelligent looking Chinawoman, was present in Court throughout the proceedings.
  Mr. Wilkinson, in opening the case for the appellant, said that it was an appeal from a judgment of H.B.M.'s Court at Tientsin. The essential point in the present suit was that on behalf of the appellant and plaintiff he claimed to set up a Will in her favour made by the deceased Capt. Grant of Taku. Having read the petition, the learned counsel said that the judgment of the Court at Tientsin was based really upon two findings, viz. that neither of the plaintiff's two witnesses who attested the document sought to be set up knew what it was, so that neither of them could tell in whose favour the document was made.  He (Mr. Wilkinson) however, would ask his Lordship to find upon the evidence as given at Tientsin, and still more upon the further evidence, to produce which leave had been given. That not only shows those witnesses know what the document was, but that there were ten other witnesses who gave evidence at the trial, all of whom stated that they knew in whose favour the Will was made.  In fact the petition of appeal asked his Lordship to reverse the judgment of the Court at Tientsin and to give effect to the remarks of the Assessors appended to the judgment.
  There was one very serious consideration about this case. In bringing this petition of appeal, in one way there was so to speak a charge of a criminal nature incidentally made against the executor and sole legatee to the first of the two Wills. The present, however, was a civil suit against O'Rourke as executor under the Will, and he (counsel) had not got to prove, and it was not for him to prove or attempt to prove, such evidence as would make a jury convict Mr. O'Rourke on a charge of a criminal nature for fraudulently making away with the second Will.  But although that was not his (Mr. Wilkinson's) duty, and was not the scope of the present action, yet if it were, the evidence given at Tientsin, and the evidence which would now be given would convince his Lordship, and any jury, that the defendant did as a matter of fact, wilfully make away with the second Will, knowing its contents and for the purpose of defrauding the plaintiff.  All that had now to be proved was, first, that the second Will existed, secondly, that there were in it certain provisions. He need not prove the exact words, but he had to prove what the intention was. He then had to give a reasonable explanation of the failure of the plaintiff to produce that document here. It was not necessary for him to prove how it was done away with after it was sealed up with Grant's papers.
  His Lordship remarked that Mr. Wilkinson had said that it undoubtedly existed at the time the drawers were sealed up.
  Mr. Wilkinson said that on the evidence at Tientsin, and on the evidence that would be adduced, there could be no reasonable doubt whatever that the document existed at Grant's death. On the present occasion he wished merely to prove certain facts which would entitle him to an order, the exact wording of which could be the subject of another application to the Court.
  The case was that there were two Wills, one benefitting the defendant and the second by which the plaintiff was benefitted. The second Will was made in August 1891, and it was that which the appellant sought to obtain probate on.
  The first Will after its execution was taken to the British Consulate at Tientsin, and was deposited by the defendant there, and had been there since until probate was granted on it. That was not questioned, but the case was as to the existence of the later Will, not deposited at the Consulate. There was evidence that Grant when on his death bed said, "I have made a Will in favour of Yu Hi, and it is in that drawer." There was the evidence of the plaintiff as to the exact appearance of the Will, and the evidence of the two witnesses who signed it.  At the trial the defendant had produced another document signed by the two witnesses at an earlier period, and he induced the Court to believe that they referred to that.  But on that point the witnesses stated distinctly, and they were not cross-examined to it, that they knew the difference between the two documents. One of the witnesses stated that he was distinctly told by Grant that he was making a Will in favour of the plaintiff, he saw it was a Will, and he knew it was a Will from the printed directions appearing at the foot of it. Having quoted from the evidence given at the trial the learned counsel said he would proceed to call his witnesses.
  Captain John Young was then called.  He said that he had known Capt. Grant for about fifteen years, and before leaving for Port Arthur the latter told him to take care of the plaintiff, and that in his Will he had provided for her. Witness remembered Capt. Grant dying. It occurred at about 10 minutes to five o'clock in the afternoon. The next forenoon the drawers in the house were sealed up in the presence of witness and others. They were sealed by Mr. French of the Consulate. The defendant had Power of Attorney for Capt. Grant and he wanted everything sealed up. Witness described the chest of drawers, and said that the drawers were locked and the plaintiff had the keys. She did not wish to give up the keys, but O'Rourke insisted she should. After the sealing of the drawers the plaintiff stayed in the house all night. After getting the keys O'Rourke went to Tientsin. The next day he returned to Taku and in consequence of a chit from him witness went up to the house. O'Rourke wanted to get the plaintiff out of the house then, but she said she did not want to go until the papers shad been transferred to the despatch box. The defendant would not let her take away a thing, not even a pocket handkerchief.  She had packed a change of clothing, but he afterwards refused  to let her take it away, and told her to come the next morning if she wanted anything.
  The defendant gave his word of honour that the drawers in which were the deceased's papers should not be touched until the next day at half past nine o'clock. When he said that, Captain McClure, Mr. Conner, Mr. Graham, and Mr. Creig were present. The plaintiff was also there, and O'Rourke said that if she did not leave he would "kick her out." Witness told the plaintiff that as all the drawers were sealed it would be better for her to leave, and she eventually left with witness. O'Rourke was left in the house.
  The next morning witness, Captain McClure, Mr. Conner, and Mr. Graham went to the house at about 09.30 to 9.45.  When they got into the house they met Capt. Graham in the hall, who said he had opened the door of the bedroom where the sealed drawers had been, and he saw the floor all strewn with torn papers. The boy, he said, had told him that the drawers had been opened at half past twelve. Graham had called there at six o'clock in the morning and found O'Rourke sleeping there. Capt. McClure said he did not believe it, but he went to the room and came out. He then said, "Yes, sure enough the seals have been cut off and the drawers opened; I am off to Tientsin; I shall have nothing more to do with it." He went away.
  O'Rourke came out then and invited the others to go in and see the papers transferred to the despatch box. Witness refused, saying that O'Rourke had not kept his promise, and he should have nothing more to do with it. O'Rourke said: "None of you would give me advice yesterday, and now the drawer is open, and the thing is done." Witness, McClure, Conner and Graham then left. Some time after witness got a letter from O'Rourke demanding to know what became of a Manila Lottery ticket. The ticket belonged to the plaintiff, having been given her by Mr. Kingsley, as a Christmas present. He also got a letter from the defendant saying: "It seems a pity that people cannot judge their neighbours as they would be judged. I cannot see how I have trodden on the toes of some of you Taku gentlemen. It would appear I have done so in some mysterious was unknown to me. Such is life." The letter concluded with a request that the plaintiff should come round to see the writer, accompanies by some one else, or there might be some more "chin-wagging."
  Witness, in answer to further questions, said the plaintiff did not tell him about the Will until after Grant's death. When Grant was going to Port Arthur to attend the docking of some ships for the Chinese Government, he remarked to witness that he "might get his neck broken over the job," but "the girl was well provided for" by him. The opening of the drawers by the defendant after he had promised not to do so had attracted attention to Grant's affairs and O'Rourke's motives. O'Rourke and Grant used to be very friendly, and when O'Rourke used to get Grant "full of whisky" he could "turn him round his finger." O'Rourke formerly was with the Hall & Holtz Co. in Shanghai, but witness believed Grant got him his situation in Tientsin.
  Captain John McClure, sworn, said he conducted the case for the plaintiff at Tientsin. He remembered Grant's illness. He went to see him two or three days before he died. He saw O'Rourke in the house. Grant asked witness about his private affairs, but witness said, "Never mind my case, Grant; have you got your things straight? You are a very sick man." He said, "Yes, Mac, I made a Will before I went to Port Arthur." Witness was sitting at his left side and there was a chest of drawers near. Grant pointing to the drawers said, "The Will is in there," adding that he had left Tls. 4,000 to Toby (the plaintiff).  Witness had often heard Grant speak highly of Toby and say he would look after her interests.
  After Grant's death witness was asked by Capt. Young to come and see him. He went down by the first train, and being informed that Captain Young was at Grant's house went there. This was two or three days after the funeral. Several people were there. Witness saw that O'Rourke was very anxious to get the plaintiff out of the house, and he (O'Rourke) asked witness to return the next morning and see the seals removed. Witness said he would have nothing to do with the matter unless he saw the seals removed in his presence, and the papers put into a despatch box. O'Rourke consented to that, and with a good deal of reluctance the plaintiff left the house. The next day witness with others, returned to the house. On going into the room where the papers had been he saw that the seals were broken, and there were some loose pieces pf paper on the floor. Witness turning to O'Rourke, asked the meaning of this, after he had almost implored the witness to come and see the seals removed. O'Rourke said, "I did not do it; it was Mr. Buchanan." Witness said, "You have been sent down here as the British constable and yet you have allowed a man to go to that desk? I do not accuse you of taking anything out of that desk, but it looks immensely suspicious. Good morning." Witness then left and did not speak to the defendant again.
  His Lordship asked if Buchanan had been there the night before.
   Mr. Wilkinson said he had been there, and at the trial at Tientsin he gave evidence that he was there when the drawers were opened and tried to prevent O'Rourke opening them.
  Witness, resuming, said the plaintiff was a very intelligent woman. She acted as housekeeper and had the keys. Whenever anything in the way of refreshments was required on the occasion of witness's visits she used to produce them. He had heard Grant ask her for money, and seen her give it to him.
  At this stage the Court rose for the day.
  28th March.
  This case, in which Yu Hi, plaintiff, appealed from a decision of H.B.M.'s Court at Tientsin, given in an action against D. O'Rourke, defendant, relating to probate of the Will of the late Captain Grant, was resumed this morning.
  His Lordship having taken his seat,
  Captain McClure, recalled, said that on the day previous to the seals being broken he said to O'Rourke in the course of conversation: "I am aware that Captain Grant made a Will previous to his going to Port Arthur." He (witness) made no reference to the amount or anything else.
  Mr. E. F. Bennett, Consular Assistant in Shanghai, said that from the middle of 1886 until about June or July, 1888, he was stationed at Tientsin.  He knew Grant well, and had seen Yu Hi in Grant's house as his housekeeper. Grant had told him that he implicitly trusted her in everything. Witness had seen evidence of this, Yu Hi keeping his keys, and on one occasion when Grant required some papers he had to get the keys from her. On one occasion Grant asked witness if he could make a Will for him (Grant). Witness began to take his instructions. The first instruction that he gave witness was that a sum of money should be left to Yu Hi. Witness had a strong recollection that it was to be Tls. 3,000. Witness suggested that seeing the sum was so large trustees should be appointed. Grant said he would consult some of his friends. Witness was taken ill shortly after and never saw him again.
  Yu Hi, the plaintiff, was then called, and Mr, Wilkinson having explained that she was a Christian and could speak good English, she was sworn and examined in English. She said that from 1880 she stayed with Capt. Grant. She understood figures, and knew the handwriting of people at Taku and Tientsin. (Mr. Wilkinson wrote down some figures and witness read them off.) Grant had lent money to O'Rourke for Blow & Co.'s business. The first amount was about Tls. 3,000, for which O'Rourke gave a receipt. Grant lent another sum of Tls. 2,000. She put the receipt in the private drawer. She saw the receipt in the drawer shortly before his death. In 1889 or 1890 Grant made a Will on white paper. Asked what a Will was, witness replied, "Suppose man make die, he catchee all money." The Will she saw was a printed form, and she saw Grant fill in the blanks. When the Will was filled in in the presence of herself and O'Rourke, Grant told her to send for Capt. Rogers to witness it. This was on a Sunday evening.  O'Rourke used generally to come down on Saturday and Sunday. O'Rourke and Grant spoke about the Will, the effect of the conversation being that they both agreed each to make a Will. O'Rourke proposed that the survivor should receive the money, and look after "Toby" (witness). He said he would look after "Toby, like his own sister, on his word of honour," Grant said he did not know about that. Both said they would leave nothing to their relatives. O'Rourke again said he would look after "Toby," and then Grant said, "All right, I take your word like a man." Her name was not put in that Will. Grant was not sober, but O'Rourke was. The Will having been filled in was signed by Capt. Rogers (who signed first), and then by Mr. Graham, for whom she sent. O'Rourke then put the paper in his pocket and took it to Tientsin, saying that he (O'Rourke) would make a Will in Grant's favour. O'Rourke said it was better he should take the Will for safe custody.
  She remembered Grant going to Port Arthur. Before he left he made another Will; that was in August, 1891. This Will was on blue paper, filled-in in just the same way. Grant told her that he was going to Port Arthur to do some work, upon which he might get killed. He therefore made this Will so that she should be all right. If he got killed, the Consul was to be called, and in the drawer the Will would be found. Grant having filled in the Will read it to her. It was to the effect that he had left her everything in the house and Tls. 4,000. He wrote in "Toby" and then "Yu Hi." Mr. O'Rourke was named as executor.  She saw her name and the figures. After the Will was prepared Mr. French and Mr. Griese came over. It was about half past two o'clock in the day. The Will was put in the private drawer, with other documents. It was in a square envelope. Grant told her to put it in the envelope, which had written on it, "Mr. Grant, private papers."  Grant repeated that if anything happened to him at Port Arthur she would be all right. She saw the Will in the drawer very frequently, having occasion to go to the drawer nearly every day. The drawer contained the market money. Witness kept the key.
  On New Year's Day, 1892, Grant gave a tiffin party at which O'Rourke and several others were present. At night time O'Rourke, French, Creig, and Buchanan were still there. Buchanan sang a song and after that O'Rourke said to Grant: "You have gone back on me; you have told Buchanan I owe you some money." Grant denied that, and Buchanan said, "I think it is about time I went away." He then left, and all but O'Rourke followed.  O'Rourke revived the subject after their departure, and they continued the altercation. Grant told O'Rourke he had made another Will leaving all his money to "Toby," and added that he should have out all his money from Blow & Co., in February. O'Rourke said, "If you do that you will make a fool of yourself." It was not quarrelling. This was on Friday night and O'Rourke stayed until Sunday night. Grant went to bed at two o'clock on Monday morning, and became ill.  He did not recover.
  Grant never spoke to witness about destroying the second Will. If he had wanted to get it he must have asked witness for the key. O'Rourke, and witness were there. After Grant died, O'Rourke, Graham and Conner remained with witness and sat up. The next morning the drawers were sealed by French. O'Rourke requested her to give him the keys, but she said she would not do so until Mr. Bennett came down. O'Rourke persisted, and the other gentlemen there advised her to give up the keys, saying that as the drawers were sealed they could not be opened except in the presence of witnesses.
  In the 19th O'Rourke said she must leave the house, as he had got Consular powers to seal up the house. He said if he liked he could set fire to the house.  She said, "No you cannot, for it is Government property." She remained that day, but the next day left. On the morning of the 22nd, she went into the room, where the chest of drawers was. She saw the drawers had been opened, and amongst the torn papers strewn about the floor she recognised the envelope in which had been O'Rourke's receipt for money advanced by Grant. She asked O'Rourke what had become of the paper referring to her, and he said, "I have seen no paper." O'Rourke was in the rom when she entered. She asked him how it was that the envelope in which the receipt had been was on the floor, and he answered, "Oh, that is no matter." She asked him about the power of attorney given by Mr. McMurray to Grant. He said that it was of no use, he had thrown it in the fire. She remembered that at the trial at Tientsin O'Rourke said he had only destroyed some Masonic papers. Those papers were not in the drawer, they were in a small box. Some time after the funeral - about three weeks - She saw O'Rourke and asked what was to become of her. He said, "I can do nothing for you."
  Subsequently he wrote to Captain Young asking for her to go and see him at Tientsin, accompanied by some one else, or there would be some more "chin-wagging." At the interview he said that she must wait for about three months until the papers came back from Hongkong and then he would "let her know."  She was quite sure he had said Hongkong and not Shanghai.  She had another interview with him and he offered to pay her $20 a month.  She refused and then he offered to make a Will in her favour. She declined that also, saying that as she had nothing to do with him she did not want any such Will. On an advertisement asking that all claims against the estate of Grant should be sent to O'Rourke appearing, witness went to see O'Rourke, taking with her Mr. Smith as a witness. O'Rourke again declined to do anything for her, and after that she sent in her claim.
  Mr. J. W. Jamieson, Consular Assistant, formerly stationed at Tientsin and now in Shanghai, said he remembered O'Rourke bringing two Wills to the Consulate to be registered. One was Grant's and the other his own.
  This closed the evidence, and
  Mr. Wilkinson addressed his Lordship in support of his contention that the appellant was entitled to probate of the second Will - the household furniture and the sum of Tls. 4,000, and argued, by reference to authorities, that where the contents of a Will were not wholly known, probate could be granted as far as they were known.
  Judgment was reserved.
.  .  .  
 

Source: North China Herald, 14 April, 1893
 

LAW REPORTS.
H.B.M.'S SUPREME COURT.
ON APPEAL FROM  H.B.M.'S COURT AT TIENTSIN.
Shanghai, 8th April.
Before N. J. Hannen, Esq., Chief Justice.
YU HI v. D. O'ROURKE.
  This case, in which Yu Hi, plaintiff, appealed from a decision of H.B.M.'s Court at Tientsin, given in an action against D. O'Rourke, defendant, relating to probate of the Will of the late Captain Grant, came up this morning for judgment.
  His Lordship said: This is an appeal from H.M.'s Court at Tientsin. The petition in the Court below in effect claimed that a Will had been made by one Grant of which the defendant was executor, and that in that Will the plaintiff had been left a sum of Tls. 4,000. It also claimed in the alternative a sum of money for services rendered. I am not concerned with this latter claim as it has been withdrawn.
  After hearing evidence the Court at Tientsin in effect found that the executor of this Will or codicil was not proved, and that there was no evidence to show in whose favour it had been made. The Assessors dissented from the finding of the Court as to the existence at some time of this Will but they seem to have thought that the evidence as to its contents was inconclusive, and that there was no evidence as to its ultimate fate.
  The petition of appeal asked that if necessary the original petition should be amended by adding a claim for probate of the Will of August 1881.  Under the form which the case has now assumed I think such an amendment is necessary and as I did not see that the defendant and respondent would be prejudiced by such an amendment, I shall allow it.
  I may observe that throughout the case plaintiff's main contention has been that such a Will did exist at the time of Grant's death and the main contention of the defendant has been that no such will was then in existence. The amendment does not therefore touch the substance but only the form of the issue between the parties.  This amendment was asked for by the plaintiff in her petition of appeal on the26th of July, 1892, was not objected to by the defendant in his answer to that petition and has never been formally opposed up to the present time.  This then becomes an application on the part of Yu Hi for probate of a Will executed by William Grant in the month of August, 1891, by which the testator left the plaintiff a legacy of Tls. 4,000 and his household furniture, and of which Will he made the defendant, O'Rourke, executor.
  The exact form of the decree, the plaintiff's counsel reserved the right of suggesting at a future time should the main contention be decided in plaintiff's favour.  Upon the case as it at present stands arise three questions:
Was there ever such a duly executed Will as the plaintiff alleges?
If there was, had it been destroyed by the testator animo revocandi?
What were its contents?
  Before proceeding to answer these questions, I wish to make a few general observations on the case. It has been presented to me very ably by Counsel for the plaintiff, whereas she was not represented professionally before the Court below. It is manifest from the whole record that all the parties in the Court below thought that the main point in this part of the case was: "Has it been affirmatively proved that the defendant destroyed this Will?"  Thinking as they seem to have done, that this was the question which they had to decide, I can quite understand that the Court and Assessors hesitated to come to the conclusion that such destruction had taken place. But that was not and is not the real question.
  The plaintiff is not bound to prove how the Will has disappeared. If it existed she is only bound to prove that it was not destroyed by the testator animo revocandi. I am at all times loath to differ from the view which a Consul takes of a case. I know how much depends on the demeanour of witnesses and I know the care and thought which Consular officers are in the habit of bringing to bear on cases which come before them; but when upon the evidence which comes before me I clearly differ from them, I should not be doing my duty if I did not express that difference and give judgment in accordance with my own view.
  In the present case, upon the first question, whether there ever existed such a duly executed will, I have the opinion of the Assessors to confirm my own and I come to the conclusion that Grant executed a Will in August, 1891. There is the testimony of almost every witness called at Tientsin, including that of Buchanan, who was evidently in favour of the defendant, that Grant had said that he had executed such a Will. Then there was the uncontradicted statement of Yu Hi (not cross-examined to) that she saw him make it and there was the evidence of the two attesting witnesses. That this will was duly executed I consider proven, firstly by the evidence of Yu Hi, and secondly, by the evidence of the attesting witnesses. I say by the attesting witnesses because Griese, although he only gives evidence of having witnessed the testator's signature to a document in the middle of 1891, says that French also witnessed it, so that he proved having witnessed such a document as French describes. The material parts of the evidence of these two witnesses is as follows:-
  G. Gruise: "In the middle of 1891 I witnessed Grant's signature to a printed document, French also signed the document above referred to at the same time as I."
  W. French: "In August 1891 he (Grant) spoke to me about making a new will. In August 1891 I witnessed Grant's signature to a document. I saw the words, 'witness to testator's signature.'"
  From the whole evidence I come to the conclusion that a will was made, and from the evidence of Yu Hi, Griese and French I come to the conclusion that it was duly executed in August 1891.  With regard to the observation of the Judge in the Court below "one witness remembered seeing the printed words 'witness to testator's signature' but I do not think that this is a form of words to be found in any printed will" I should remark that the two forms of printed will brought to my notice, although they do not contain those exact words, do contain the words - "Testator's signature" and a little below - "Signatures of witnesses," and it seems to me not an unnatural way of describing these words to say that the witness saw  "witness to testator's signature."
  I now come to the second question: Was the will destroyed by the testator animo revocandi? There is absolutely no reason for disbelieving the testimony of Mr. McClure that a few days before Grant's death he said that he had made a will previous to his departure for Port Arthur in September 1891 and that the will was "there" - pointing to a desk with drawers in it. This by itself seems to me to show that at least Grant thought the will was there. If he thought that, although he might, at that time, have destroyed it by mistake, he could not then have destroyed it animo revocandi. Yu Hi is spoken of by all the witnesses as keeping the keys of those drawers and she had the keys in her possession till after Grant's death. He therefore never had an opportunity of destroying the will after he spoke to Mr. McClure. I think therefore that while the Assessors at Tientsin are right in saying that there is no evidence as to the ultimate fate of this document there is ample proof to show that the testator never destroyed it with the intention of revoking it. And this is all that it was necessary for the plaintiff to prove.
  I have now to deal with the question of what were the contents of this will. The most material portion of the evidence given in the Court below upon this point was as follows:
  "J. McClure: Three or four days before Grant's death I went into his room. In the course of conversation he said he had made a will previous to going to Port Arthur (on 9th Sept., 1891) in which he had left Yu Hi Tls. 4,000. He said that the will was in that desk - pointing to the desk which was subsequently sealed. The desk was like a chest of drawers."
  "Yu Hi: Before Grant left for Port Arthur he wrote a paper. He called French and Griese - when they had signed it I put it in a drawer in the desk. It was a blue paper. He said he left me Tls. 4,000 in it with all his furniture. I saw the paper often subsequently. I saw the document on the first of January at tiffin time; it was in the private drawer."
  "J. Graham: Within the last two years he has repeatedly said he would leave Yu Hi Tls. 4,000 by will if he died in China, or in some other way of he left China."
  Almost all the witnesses, including the defendant and respondent, speak of Grant saying that Yu Hi would be provided for. From the evidence I think that the plaintiff has proved that the will contained a legacy to her of Tls. 4,000.
  I have hitherto dealt with the case entirely upon the evidence given in the Court below. So long ago as the 22nd of November an order was made in the presence of counsel for the defendant that either party should be at liberty to adduce further evidence viva vice or on an affidavit. The plaintiff availed herself of this permission, but for some reason the defendant did not, and did not make any move to do so until the appeal was set down for hearing. He then applied for a postponement of the hearing, but upon this being strenuously opposed by the plaintiff's counsel and there being nothing of which I could properly take notice to support the application, I was compelled to dismiss the application. I thought it better therefore to determine the main parts in issue upon the evidence given in the Court below. I need only say that it entirely confirms me in the opinion I have formed from the evidence at Tientsin, and I am bound to add that the demeanour of the witnesses convinces me that they were the witnesses of truth. There are two points as to the contents of the will which appeared more distinctly at the hearing before me than they did at Tientsin. In accordance with the order of the 22nd of November last affidavits were filed by the plaintiff to one of which she attached printed forms of wills, the first of which on white paper she said was like the one used for the first will, and the second of which on light-blue paper she said was similar in all respects as far as she could judge to the one used for the will of August 1891. They appear to be identical except that the first is on white, and the second on blue paper.  They both contain the printed words "all and every household furniture, linen, &c." describing everything which the testator possesses. She in that affidavit and in Court said that O'Rourke was made executor of the will. This is the first point and as there does not appear from the evidence to be any reason for doubting this, I hold that it was proved that the will of August 1891 named him as executor.
  The second point is that the plaintiff alleges that the will left the household furniture to her. Now with regard to this it is to be noted that Yu Hi acknowledges that she cannot read English, but only figures. She demonstrated in Court that she could do this, and therefore she may have seen that she was left Tls. 4,000. But she could not have well seen that she was left the furniture. Moreover, the household furniture and every other part of testator's estate as set out in the printed forms of will attached to her affidavit and unless the testator Grant struck this portion of the printed form out (which she does not alleged that he did), he could not well have left the furniture to her as a legacy. She also said in her affidavit that Grant said he left Tls. 3,000 to his sisters, but she does not seem to have said this at Tientsin and she did not repeat it in Court before me.  There is not therefore sufficient evidence in my opinion that this was contained in the will of Aug. 1891.
  On the whole then I come to the conclusion that there is not sufficient evidence that the will contained the bequest of the household furniture, or the bequest of Tls. 3,000 to the sisters, and I find as a fact that the will of August 1891 was duly executed and attested; that the will was never revoked by the testator and that it contained a legacy of Tls. 4,000 to the plaintiff Yu Hi and named the defendant O'Rourke executor.
  Upon these findings I shall leave the plaintiff to move for such order as she thinks herself entitled to, and upon her doing so the question of costs can be gone into.

 

Source: North China Herald, 19 May, 1893


H.B.M.'S SUPREME COURT.
ON APPEAL FROM H.B.M.'S COURT AT TIENTSIN.
Shanghai, 12th May.
Before N. J. Hannen, Esq., Chief Justice.
YU HI v. D. O'ROURKE.
  This case, in which Yu Hi, plaintiff, appealed from as decision of H.B.M.'s Court at Tientsin, given in an action against D. O'Rourke, defendant, relating to probate of the will of the late Captain Grant, came up this morning.  Mr. H. P. Wilkinson on behalf of Yu Hi, moving for a Decree upon the Judgment of the Court delivered on 8th April last. It will be recollected that in the Judgment His Lordship overruled the decision of the Court at Tientsin, and found for the will of August 1891.
  The petition for a Decree was as follows:-
  That all necessary amendments be made in the petition of the plaintiff and appellant.
  That the probate of the alleged will and testament of William Grant, late of Taku, deceased, granted on or about the 15th day of February 1892 by Her Britannic Majesty's Court at Tientsin to Daniel O'Rourke of Tientsin, be called in, rev0ked and declared null and void.
  That probate of the copy of the original last will and testament of the said William Grant, who died on the 17th day of January, 1892, duly made and executed by him and bearing date on or about the 15th of August, 1891, wherein he appointed the said Daniel O'Rourke sole executor thereof, which said will was at the time of the death of the said deceased unrevoked and in the  same condition as when executed, but has since been lost or mislaid and cannot now be found, be granted in the words and figures set out in schedule hereto marked A until the said original will shall be brought into the Registry of the Honourable Court.
     That Daniel O'Rourke, the sole executor appointed by the said last will and testament do within 14 days after service hereof, inclusive of the day of such service, cause an appearance to be entered for him in Her Britannic Majesty's Supreme Court for China and Japan at Shanghai, and do accept or refuse probate of the said will, or show cause why letters of  administration with the copy of the said will annexed of the personal estate and effects of the said deceased should not be granted to John McClure of Tientsin on behalf of Yu Hi of Taku, the legatee named in the  said will.
     That the plaintiff and appellant do recover against the defendant and respondent her costs in this suit in Her Britannic Majesty's Court at Tientsin and in this Court to be taxed.
Mr. Wilkinson, having referred to the petition, said that the last will, having been held to be valid, the first will, of which probate was granted to Daniel O'Rourke, was obviously of no effect, and he asked that the probate be annulled and declared void.
  His Lordship asked whether there was formal proof of the granting of the probate of the first will.
  Mr. Wilkinson contended that the pleadings and evidence in the case showed that the defendant was from the first acting as executor under the probate of the will.
  His Lordship, after some further discussion, held that there was proof of the probate.
  Mr. Wilkinson, upon the next point, asked that either the defendant O'Rourke should be ordered to come and take probate of the last will, or that John McClure should be appointed to administer the estate. There were difficulties in the way of both cases. If O'Rourke were forced to take up probate - and he could be forced - there was the question of the further time he would have to deal with the estate, and the difficulty of his past dealings. On the other hand, if probate were granted to any one else there was the difficulty of the amount of time he had been dealing with the estate and the difficulty of getting accounts and finding out the state of the estate at the time of the testator's death.
  His Lordship said as nobody appeared on the other side he must take time to consider what he would do in the matter, except with regard to the costs. The costs of the proceedings at Tientsin must come out of the estate, and the costs here be paid by O'Rourke.
  Mr. Wilkinson having remarked that of course no action could be taken upon the other matters meanwhile,
  His Lordship said - I will do it as soon as I can. If O'Rourke intended to do anything to make away with the property or to get away himself, he has had ample time, and if he has not done it by now, he is not likely to do it in the two or three days I shall take.
  The proceedings then terminated.
.  .  .  
ON APPEAL FROM H.B.M.'S COURT AT TIENTSIN.
Shanghai, 18th May.
Before N. J. Hannen, Esq., Chief Justice.
YU HI v. D. O'ROURKE.
  This case, in which Yu Hi, plaintiff, appealed from a decision of H.B.M.'s Court at Tientsin, given in an action against D. O'Rourke, defendant, relating to probate of the will of the late Captain Grant, came up again this morning. Mr. H. P. Wilkinson on behalf of Yu Hi, moved on Friday last for a Decree upon the Judgment of the Court, delivered on 8th April last, and His Lordship now gave his decision on the application.
It will be recalled that last month His Lordship overruled the decision of the Court at Tientsin, and found for the will of August, 1891.
  His Lordship, in giving his decision, sad - I have considered the matter, and have come to the conclusion that I am justified in making the order in the terms you have asked. I propose to make it now, that Letters of Administration and copies of the said Will annexed, set out in the application, should be granted to John McClure of Tientsin, on behalf of Yu Hi of Tientsin.
  Mr. McClure will have to find the usual security, because you see, under the present circumstances, the residue will probably go to the representatives of the testator, and therefore the whole money of the estate will go into his hands, and he will have to pay over one part to Yu Hi, and part to the representatives of Grant, whom he may have some difficulty in finding. Under these circumstances, as the whole of the money goes into his hands, and he will have to distribute it, he will have to find proper security in some shape, because the representatives are not represented here. I therefore shall be obliged to make it under section 73, but I will not exercise the power there given to me to make it without security, and I must ask for that.
  Mr. Wilkinson - The ordinary security, I suppose?
  His Lordship - The ordinary security, or twice the sum at which the estate is estimated. I settled on the past occasion the question of costs, and therefore I need now only say that I make the order in the terms of your application, and that paragraph 4 of your application will be granted, as prayed in the latter part. The second alternative is therefore given.
  Mr. Wilkinson - Of course leaving the question to Mr. McClure as to what steps he will take to get the estate?
  His Lordship - Yes.
  Mr. Wilkinson - And as to the register?
  His Lordship - The register is here, - you may draw the formal order
  

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