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Hongkong Bank Trustee Ltd. And Others v Lee Yee Hung And Others

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date22 October 1992
Year1992
Citation[1993] HKLR 267
Judgement NumberCACV80/1991
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000080/1991 HONGKONG BANK TRUSTEE LTD. AND OTHERS v. LEE YEE HUNG AND OTHERS

CACV000080/1991

Civil Appeal No 80 of 1991

Headnote

Construction of will. Duty of court to endeavour to reconcile partially conflicting provisions.

I N THE COURT OF APPEAL 1991, No. 80
(Civil)

IN THE MATTER of the Trusts ofthe will of RAYMOND PIERREMARDULYN also known as PIERR MARDULYN, deceased

----------------

BETWEEN

HONG BANK TRUSTEE LIMITED

1st Plaintiff
(11th Respondent)

JOHN CECIL FENTON

2nd Plaintiff
12th Respondent)

HONGKONG AND SHANGHAI BANK TRUSTEE (JERSEY) LIMITED

3rd Plaintiff
(13th Respondent)

AND

LEE YEE HUNG

1st Defendant
(1st Respondent)

LEE SIU HUNG

2nd defendant
(2nd Respndent)

CHANG SHEUNG YUEN

3rd Defendant
(3rd Resondent)

HELENA M. DE FIGURIEREDO

4th Defendant
(4th Respondent)

BERYL NG (nee WONG)

5th Defendant
(5th Respondent)

MABEL BRONWYN MARDULYN

6th Defendant
(6th Responden)

MARIE-ANNE FOK-LOK

7TH Defendant
(7th Respondent)

MARTHE VAN BEIRENDONCK

8th Defendant
(8th Respondent)

M. C. KWOK (nee CHRISTINA MAK)

9th Defendant
(9th Respondent)

PIERRE MARDULYN

10th Defendant
(1str APPellant)

HENRI ANTOINE ALPHONSE MARDULYN

11th Defendant
(2nd Appellant)

ANNE-FRANCOISE CELINE LUCIE MARDULYN (A Minor) by Cl. Verstrekenher her guardian ad litem

12th Defendant
(3rd Appellant)

JEAN MINCHEL YVES MARDULYN (A Minor) by Cl. Verstreken his guardian ad litem

13th Defendant
(4th Appellant)

GENERALE BANK & TRUST (BAHAMAS) LIMITED

14th Defendant
(10th Respondent)
IAN CONRAD MACKIE 15th Defendant
ROBERT JAMES MACKIE 16th Defendant
JOY CAROL POOLE 17th Defendant
DAWN VALERIE LEONARD 18th Defendant
KEITH PATEICK LEONARD 19th Defendant
DIANA McCALLUM 20th Defendant
MARION CHURN 21st Defendant
ADRIAN PHILIP MACOMBER CHURN 22nd Defendant

SIMON JEREMY MACOMBER CHURN

 23rd Defendant
GRAHAM PETER SLACK 24th Defendant
PHILIPPA ANN DANAHER 25th Defendant
JONATHAN SLACK 26th Defendant
HENRI MARDULYN 27th Defendatn

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Coram: Hon. Fuad, V-P, Penlington and Nazareth, JJ.A.

Dates of hearing: 24th and 25th September 1992

Date of handing down of judgment: 22nd October 1992

------------------------

J U D G M E N T

------------------------

Nazareth, JA:

1. This is the judgment of the Court.

2. This is an appeal by the 11th, 12th, 13th and 14th defendants against the construction by Liu J of clause 7(b) of the will of the testator, Raymond Pierre Mardulyn, who died on 5th February 1985.

3. The will made provision for certain outright bequests with the remainder to trustees to call in and convert the same into money and to re-invest upon the trusts in clause 7(b) and (c), which were in the following terms:

"7. MY TRUSTEES shall hold the net proceeds of the said sale and conversion and my ready money upon the following trusts:

(a) UPON TRUST to invest the residue in their names in any investments hereby authorized and to stand possessed of such investments and all parts of my estate for the time being unsold (hereinafter and hereinbefore called 'my Residuary Estate').

(b) UPON TRUST to pay the income of my Residuary Estate to the following persons in the proportions and for the periods hereinafter mentioned that is to say:

(i) As to one equal tenth share thereof to the said LEEYEE HUNG during her lifetime.

(ii) As to one equal tenth share thereof to the said LEE SIU HUNG during her lifetime.

(iii) As to one equal tenth share thereof to the said CHANG SHEUNG YUEN during her lifetime.

(iv) As to one equal tenth share thereof to Helena M. de Figueiredo, of 13, Orange Grove, Kensington Park, Adelaide, South Australia 5068, during her life time.

(v) As to one equal tenth share thereof to Mrs. Beryl Ng, born Wong, of Vancouver and Hongkong, during her lifetime.

(vi) As to one equal tenth share thereof to Mabel Bronwyn MARDULYN, of Flat 17 Cedar Grange, 36 Village Road, Bush Hill Park, Enfield Middlesex EN1 2EN, England, during her lifetime.

(vii) As to one equal tenth share thereof to the said Marie Anne Fok-Lok during her lifetime.

(viii) As to one equal tenth share thereof to Miss Marthe van Beirendonckl of 44 Koninging Astridlaan, 2800 Mechelen, Belgium, during her lifetime.

(ix) As to one equal tenth share thereof to the said Mrs. M.C. Kwok, nee Christina Mak, during her lifetime.

(x) As to the remaining one equal tenth share, thereof during the period which shall end with the death of the last survivor of the persons respectively named in sub-clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) of this Clause 7(b) to my said nephew PIERRE MARDULYN and from and after his death or alternatively if he shall predecease me (whether before or after the date of this my Will) until the death of such last survivor as aforesaid for the advancement maintenance education or otherwise howsoever for the benefit of his issue if more than one in equal shares per stirpes.

PROVIDED that as and when the persons respectively named in sub-clauses (i) , (ii) (iii) , (iv) ,(v) , (vi), (vii), (viii), (ix) and (x) of this Clause 7(b) shall die or in the event of any one or more of such persons predeceasing me (whether before or after the date of this my Will) I direct that her or their share or respective shares of income as aforesaid shall be paid by my Trustees as an accretion to the respective shares of the other such persons in equal shares.

(c) As from the death of the aforesaid last survivor of the persons respectively named in sub-clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (x) of Clause 7(b) hereof UPON TRUST as to both Capital and Income thereof for my said nephew PIERRE MARDULYN absolutely or if he shall predecease me (whether before or after the date of this my Will), then UPON TRUST for such of his issue as shall survive me and attain the age of twenty one years and if more than one in equal shares absolutely per stirpes."

4. The testator died without revoking the will and leaving no grandparents, parents, widow, children or other next of kin, except his brother, Dr Henri Mardulyn, the 27th defendant, who would be entitled upon an intestacy. Dr Henri Mardulyn had one son, Pierre Mardulyn ("the nephew") and 10th defendant, who survived the testator and was aged 49 years at the time of the hearing below. The nephew has three children: (a) Henri Antoine, the 11th defendant who was born on 21st June 1966 and is now some 26 years of age; (b) Anne-Francoise, the 12th defendant who was born on 28th March 1970 and is now 23 years of age; and (c) Jean Michel, the 13th defendant who was born on 13th January 1971 and is now 21 years of age.

5. Probate of the Will was granted on 3rd April 1986 to the 1st and 2nd plaintiffs as Executors and Trustees. On the 4th June 1990 they issued an originating summons seeking the determination of the Court on several questions of the true construction of the Will. This appeal is only concerned with the answers to the following questions relating to clause 7(b):

"1(1) Whether, on the true construction of the Will of Raymond Pierre Mardulyn deceased and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") referred to in paragraphs (i) to (ix) of Clause 7(b) of the Will of Raymond Pierre Mardulyn deceased during the lifetime of one or more of the other persons named in paragraphs (i) to (ix) of Clause 7(b) of the said Will and during the lifetime of Pierre Mardulyn, the nephew of the said deceased, the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes

(a) to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and Pierre Mardulyn in equal shares or

(b) to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and in equal shares or

(c) to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the said nephew Pierre Mardulyn and the issue of the said nephew who are then alive, and if so, in what shares or

(d) in some other manner, and if SO, in what manner?

1(2) Whether, on the true construction of the said Will and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") referred to in paragraphs (i) to (ix) of the said Clause 7(b) during the lifetime of one or more of the others of such persons but after the death of the said nephew Pierre Mardulyn the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes

(a) to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then or

(b) to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the estate of Pierre Mardulyn in equal shares or

(c) to the other persons referred to in 'paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the issue of Pierre Mardulyn and if so, in what shares or

(d) in some other manner, and if so, in what manner?

1(4) Whether, on the true construction of the said Will, the interest of an individual member of the class of issue of Pierre Mardulyn under paragraph (x) of the said Clause 7(b) and in any share accruing...

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