Leong v Chye
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1955 |
| Date | 1955 |
| Year | 1955 |
| Court | Privy Council |
Malaya - Will - Construction - Marriage condition - Gift of personalty - Condition subsequent - In partial restraint of marriage - No gift over - In terrorem condition - Interest not forfeited on remarriage - English rule applicable in Federation of Malaya - Intention of testator - To be extracted from the will - Extraneous evidence inadmissible. - Will. Colony - Application of local law - Applicability in local circumstances.
The English rule that a condition subsequent in partial restraint of marriage, when annexed to a bequest of personalty, is ineffective to destroy the gift unless the will in question contains an explicit gift over of the legacy to another legatee, is applicable in Penang.
Principle in Yeap Cheah Neo v. Ong Cheng Neo (
Further, in so far as the rule is rested on intention of the testator, the intention relied on must be found within the four corners of the will itself and extracted from the contents of the will, and is not to be found or guessed at from extraneous circumstances or on a balance of probabilities.
A Chinese testator, resident in Penang, by clause 13 of his will provided that his residuary estate was to be divided equally amongst his two widows, his sons and a nephew, and that if any of the sons should die before the prescribed date of distribution leaving
“a lawful widow and female issue his share shall go to such lawful widow and female issue equally if more than one, provided such lawful widow shall remain the widow of such deceased son …”
There was no gift over in the event of that condition not being fulfilled. One of the testator's sons having died before the date of distribution of the testator's residuary estate, leaving a widow and a daughter, the appellants, the widow married again before the date of distribution. On a summons to determine to whom the deceased son's share of the residuary estate was payable:—
Held, applying the English rule, that the condition or proviso must be treated as “merely in terrorem” — as intended merely in a monitory sense — and that the appellants were entitled to take the deceased son's share equally between them notwithstanding the remarriage of the widow.
There being no gift over in the event of the condition not being fulfilled, the share would not have fallen back into residue, if forfeited, but would have passed on intestacy as undisposed of by the will.
APPEAL (No. 33 of 1953) from an order of the Court of Appeal at Penang in the Supreme Court of the Federation of Malaya (February 13, 1953) reversing in part an order of the High Court of Penang (April 15, 1952).
The following facts are taken from the judgment of the Judicial Committee: This appeal from an order of the Court of Appeal, Supreme Court of the Federation of Malaya, related to two questions which arose in carrying out the testamentary provisions of a resident of Penang, Lim Kia Joo, deceased (hereinafter called “the testator”).
The testator died on November 19, 1936, leaving a will made in Penang on August 21, 1936. Letters of administration de bonis non with the will annexed were granted to two administrators on May 7, 1939, and it was they who instituted an originating summons to determine the questions that were the subject of the present appeal. The persons who appeared respectively as appellants and respondent before the Board were interested parties. The main question in the appeal was whether the interests of the appellants Sally Leong and her daughter, Lim Eang Hoong, or the interest of Sally Leong alone, had been forfeited by a provision in the will requiring widows not to remarry. There was a subsidiary question as to the destination of the income of residue accruing prior to the date of distribution.
The testator's will was a document of some length and contained numerous dispositions. For the purposes of the appeal the important clause was clause 13, which constituted a bequest of residue. By earlier clauses the testator had given legacies to named grandchildren and daughters; had provided marriage portions for daughters by each of his two wives; had made certain dispositions by way of maintenance for his widows, infant sons and unmarried daughters, and provided for his house, 47, Northam Road, Penang, to be kept up as a place of residence for his family until the date when his residuary estate became distributable.
Clause 13 was a residuary bequest embracing all the testator's property except his property in China. It set up the usual trusts for sale, conversion and investment, and then proceeded as follows:
“Upon trust to pay out of the income of my residuary estate in the first place and out of the capital thereof if such income be insufficient the sums directed to be paid under clauses 9, 10, 11 and 12 hereof and until my youngest son living at my death shall attain the age of 21 years or if he shall die without having attained the age of 21 years then until such time as he would if living have attained such age. Upon trusts as to both the capital and income of my residuary estate to pay and divide the same equally among my said wives Yeoh Ah Eong and Queh Ah Gaik and my sons Lim Beng Hong, Lim Beng Choon, Lim Beng Sai, Lim Cheng Hooi, Lim Weng Hooi, Lim Beng Chye and Lim Chit Bah, and my nephew Lim Joo Huat the son of my elder brother Lim Niah Sah and any other sons that may hereafter be born to me by my said wives Yeoh Ah Eong and Queh Ah Gaik. Provided that if either of my said wives shall not remain my widow or lead a chaste life or shall die before the period fixed for the division of my residuary estate her share shall go equally to my said sons Lim Beng Hong, Lim Beng Choon, Lim Beng Sai, Lim Cheng Hooi, Lim Weng Hooi, Lim Beng Chye and Lim Chit Bah my nephew Lim Joo Huat and any other sons that may hereafter be born to me by my said wives Yeoh Ah Eong and Queh Ah Gaik. And provided that if any of my said sons Lim Beng Hong, Lim Beng Choon, Lim Beng Sai, Lim Cheng Hooi, Lim Weng Hooi, Lim Beng Chye and Lim Chit Bah, my nephew Lim Joo Huat and any other sons that may hereafter be born to me by my said wives shall die before the period fixed for the division of my residuary estate leaving male issue his share shall go to such male issue equally if more than one but if he shall not leave any male issue but shall leave a lawful widow and female issue his share shall go to such lawful widow and female issue equally if more than one provided such lawful widow shall remain the widow of such deceased son or nephew and lead...
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