SPROULE J. - The facts in this friendly matter are garnered by me from the Will and from Counsels' statements as well as from Petitioner Oon Chye Oo's affidavit.

Testator was eldest son of Oon Eng Cheok, and Petitioner is Testator's eldest son and, since his grandfather Cheok's death, head of the family, under the wing of his mother Oh Ah Chooi.

Testator died on 18th July, 1926. By his Will, dated three days earlier, he appointed two executors, his father Cheok and the Petitioner. The principal asset of the Estate was a sundry goods shop, chop Sin Hock Guan, authorized and directed by the Will to be carried on by the Executors.

Testator's father Cheok, besides being the head of the family, was a very wealthy man. He applied for and obtained Probate of Testator's Will on 11th January 1927, having induced Petitioner to sign a renunciation of Probate on 15th October 1926.

Petitioner gladly stood down in this way in deference to his grandfather, the head of the family. The business of chop Sin Hock Guan, however, has always been managed by him on behalf of the Executor,. since the Testator's death.

The grandfather, Cheok, was killed in a motor accident at Butterworth, on his way back from the Kedah Court of Appeal on 15th January 1927. As stated Cheok's death made Petitioner the head of the family. Cheok, however, left a Will appointing out Testator (who, as we have seen predeceased him) and his younger son Oon Boon Tan. Petitioner's uncle, as executors. Boon Tan has taken Probate and is therefore, prima facie, derivative executor of the Will of the Testator, Cheok's eldest son.

Petitioner now seeks to retract his renunciation of 15th October 1926, and apply for Probate of his father's Will. The widow has entered a caveat, but really consents. Boon Tan, too, has entered a caveat, but in a friendly spirit, and in order to obtain a ruling from the Court regarding his exact status and responsibility as derivative Executator. It is agreed by both caveators that Petitioner, as male head of the family and as manager of chop Sin Hock Guan, is the person most proper to administer Testator's Estate, and that his appointment would be for the benefit of that Estate and in accordance with the best Chinese family traditions.

The only difficulty in the way of my accepting and allowing his retractation and granting him Probate, arises out of the wording of section 849 of our Civil Procedure Code which says in sub-section (2).

"The renunciation" (i.e., of Probate or of Administration with or without will annexed) "may be made orally in the presence of the Court or a Judge or by a writing singed by the person renouncing and when made shall preclude him from ever thereafter applying for a grant of probate or letters of administration."

The italics are mine.

This section, according to Mr. van Someran, is taken from Indian Act V of 1881 section 17. The Civil Procedure Code of 1878 did not deal with this matter, and English law, as it existed prior to the Probate Act of 1858, would therefore have been applied in the Colony, if need arose, prior to the passing of our new Code of 1907. I don't profess to understand why the framers of the new Code preferred an Indian model to the English Probate Act cited.

The English law on the subject, prior to the passing of the Probate Act of 1858, was that the renunciation of an executor might be retracted at any time before administration. Where there was a sole executor who renounced, or several who all renounced, and administration was granted, the renunciation could never be retracted, but where there were several executors and some renounced, but others proved the Will, the renunciation was not peremptory but might be retracted at any time before any actual grant of administration de bonis non, though not afterwards. See Williams, Executors, p. 198, 199 (11th Edn).

The latter alternative covers our case. So that, under the old practice, prior to 1907. Petitioner would have had the right to