SPROULE J. The bankrupt, Leong Tek Khean (I shall speak of him as Tek) and the defendants are brothers and co-trustees under the will of Leong Fee, deceased, defendant No. 1 being eldest and Tek the second son. Tek was entitled to one-fifth of the testator's residue, contingent upon survivorship of a period which, in the events that have happened, has already expired.

The testator died in 1912. His estate in 1924 was estimated by Mr. Gibson, the official assignee, upon materials supplied by the defendants, to be worth roughly about four and a half million dollars. These figures are not in dispute for the purposes of the arguments in this case.

Tek appears to have been the most active of the three trustees. He was, moreover, always engaged in heavy and varied commercial ventures and speculations. One of his principal ventures was Chop Tye Seng and Co., of Penang and Singapore. In August, 1922, rubber had "slumped", and this and the general depression in trade caused Tek to be in financial straits. On the 30th August, 1922, he wrote a letter (Exhibit 3) to his brother Eng, defendant No. 1, which I reproduce in full:-

"At last I have to place all my cards on the table and tell you my financial position. You well know how heavily I have lost in rubber and in speculation during these two years. I am now in great difficulty and cannot find any other way to raise a loan to turn my business. My last hope is to sell the share in our father's estate, from which I am sorry to say I have overdrawn a large amount. Now will you kindly see your way to buy up my share say for one hundred thousand dollars and let me have another trial in my business. Please consult with brother Yin Khean. Unless you can do so within a fortnight I am afraid I may be compelled to find one of the Chetties to whom I owed money. You must look upon this matter very seriously for I am now on the verge of ruin if I don't get some money soon.

"I hope you will give whatever assistance you can to buy up this share, because firstly you will do me a good turn by letting me have the $100,000 for my business, and secondly that my share in the estate is not sold to an outsider.

"I am, your unfortunate brother,

"TEK".

This human document was strongly relied upon by plaintiff's counsel, and will bear closer examination. The clue to the opening sentence is given to us by defendant No. 2, Leong Yin Khean (I propose to speak of him as Yin), in his evidence. I will say at once that I was greatly impressed with the candour and fairness of this witness, who was clearly using his best endeavour to place before the Court the whole truth and nothing but the truth.

Yin, then, admits that the three brothers failed to act up to the good Chinese tradition of brotherly affection. They lived apart and saw little of each other. Tek hated discussion of his financial affairs, in which matter his brothers met him with a similar disinclination. They knew he had many irons in the fire, and was always trying to raise funds, and knew, moreover, that he had for years been drawing money from Leong Fee's estate against his prospective share, as they themselves and all the other contingent beneficiaries had done. But I gather that it was only upon inquiry instituted after the receipt of Exhibit 3, that they guessed how huge Tek's drawings had been. He had cloaked their full extent by using the names of his various businesses as borrowers.

It was not mere embroidery, therefore, when Tek said that he had at last to make a clean breast of his financial position; and when he said "You well know how heavily I have lost in rubber and in speculation during these two years" - he was really conveying information, and not merely confirming knowledge, which Yin, for one, disclaims.

Tek, then, tells his brothers of heavy losses in rubber and speculation during the last two years, and goes on to say that he wishes to "turn his business" and wants a loan for that purpose, but has great difficulty in