Wee Chong Jin J (with whom Rose CJ and Buttrose J agreed):

This appeal arises out of a claim by the appellant to a share in the estate of Look Yan Kit deceased (hereinafter referred to as "the testator") under the provisions of the will of the testator. The claim is based on two grounds, namely, that he was the lawful son of one Look Moon Wai, a daughter of the testator or alternatively that he fell within the meaning of the expression "issue" in cl 13 of the Will of the testator so that in the events that have happened he was entitled to take the share of his deceased mother notwithstanding the fact that he was not a legitimate son of Look Moon Wai.

The facts as found by the learned trial Judge were as follows: The plaintiff's mother married one Boey Peng Khwai in or about 1917 at a marriage ceremony held in accordance with Chinese custom with the status of a principal wife or "t'sai". Within two months after the marriage she ceased to live permanently with her husband and went back to live with her father but continued to visit him from time to time until 1943 or 1944. There was never any separation or divorce between Look Moon Wai and her husband nor was there any agreement to a separation or divorce. At some unspecified date, but at any rate before July 1933, Look Moon Wai went through a form of wedding ceremony with a person called Chiang Yue Chong alias Cheng Lok and as a result of this union the plaintiff was born in July 1933.

On these facts the learned trial Judge came to the conclusion that as the marriage between Look Moon Wai and Boey Peng Khwai had not been dissolved at the time when Look Moon Wai went through a form of wedding ceremony with Chiang Yue Chong that ceremony did not result in a valid marriage between them. In the result he held that the plaintiff was not a lawful issue of Look Moon Wai.

At the trial the defendants, who were the trustees of the Will of the testator, called an expert to give evidence on Chinese custom and Chinese law. This expert gave evidence that a marriage between two Chinese persons celebrated in the traditional manner between 1910 and 1920 could be dissolved only by the husband divorcing the wife and that the wife could not divorce the husband. This expert also gave evidence that before 1933 mere long continued separation did not constitute a dissolution of such a marriage. He also gave evidence that where a woman who is living apart from her husband goes through a form of marriage with another man no valid marriage is constituted because she is not a divorced woman.

As regards the alternative claim, the learned trial Judge came to the conclusion that there was nothing either in the Will or in the surrounding circumstances to show that the testator had the intention to benefit the illegitimate issue of Look Moon Wai and that therefore in accordance with the accepted authorities the description "issue" must be taken prima facie to mean legitimate issue.

Before us it was urged by Counsel for the appellant that the learned trial Judge should have rejected the evidence of the expert that according to Chinese custom a married woman could not divorce her husband and should have held that there were no provisions in law in Singapore preventing a wife married according to Chinese custom in Singapore from unilaterally divorcing her husband. It was also urged by Counsel that from the fact that the appellant's mother had ceased to live with her husband within three weeks after the marriage and had subsequently contracted a further marriage the proper inference to be drawn was that she intended and regarded her original marriage to be at an end and accordingly the plaintiff was a legitimate child.

I am unable to accept these contentions. There was abundant evidence on which the learned trial Judge could come to the conclusion that there was no dissolution of the marriage between the plaintiff's mother and Boey Peng Khwai at the date when she went through a form of marriage cere