Lee Hun Hoe CJ (Borneo):

This appeal is concerned with the construction of a will.

On 20 March 1953, Hsu Yaw Hee (deceased) made a will in Chinese. It was prepared by the secretary of the Teochew Association on the deceased's instructions and attested by two witnesses. Four days after executing the will deceased died. His main assets were a piece of land at Matang of some 9.60 acres estimated at RM11,000 and insurance money of RM5,000. His debts were stated to be RM7,522.51. Under the will deceased appointed his wife (Sung Swee Im) and his two elder brothers, the two respondents (Hsu Yaw Tang and Hsu Kwang Thai) as executors. Deceased had one son and three daughters. His son, the appellant, Hsu Yik Chai was born on 24 March 1953, the very day deceased died. His three daughters are Hsu I Ling (born on 19 April 1947), Hsu Ee Ming (born on 24 April 1949) and Hsu Ee Hung (born in 1952). After the deceased's death his widow was too poor to look after her children, so they were brought up by the two respondents. After staying for a short period with the 1st respondent the widow left and lived with a man. The Hsu family resented her behaviour and irresponsibility and subsequently severed all connections with her.

When the appellant was 12 years old and Hsu Ee Ming 16 years of age they were legally adopted by the 2nd respondent and his wife Annie Wu on 28 March 1966 in accordance with the provisions of the Adoption Ordinance (Cap. 91). Hsu Ee Ming is now married. The appellant lived with the 2nd respondent until he was 16 years of age when he went to live with the 1st respondent until he was 26 years of age. He then left to live with his own mother. Hsu I Ling is also married. Hsu Ee Hung was adopted by the respondents' cousin. She married Lee Thian Hung and they now live in the United States of America.

Deceased was a Teochew. From time to time he sought financial assistance from the two respondents to develop his land at Matang. He was sick. He must have a premonition that he would soon die, so he decided to make a will. At the time he also signed two documents acknowledging his debts to the respondents - RM1,500 to the 1st respondent and RM5,000 to the 2nd respondent.

Probate of the will was granted to the 1st respondent on 27 March 1953. The land at Matang was transmitted to the 1st respondent on 10 February 1965 vide instrument No. L788/65. On the same day by another instrument No. L789/65 the said land was transferred to the two respondents as owners. The said land was eventually partitioned into three parcels described as Lot 228, Lot 229 and Lot 230. On 7 February 1980 by an instrument No. L1348/80 Lot 228 and Lot 229 were transferred to the 1st respondent and lot 230 to the 2nd respondent. On 13 June 1980 the appellant lodged a caveat against the said three lots of land.

In 1957 the widow sued the 1st respondent in her capacity as executor of the deceased's estate for the sum of RM5,000 being money from the insurance policy which she claimed to be entitled to under the term of the deceased's will. (Kuching High Court Civil Case No. C/50/57). The matter was eventually settled.

We now come to the will itself. The validly of the will was not in dispute. There are two English translations. The first one was accepted by the Probate Officer who acted on it (see p. 78 of the Appeal Record) by stamping it with the official seal. The second translation was by Datuk Amar Stephen Yong (see p. 85 of the Appeal Record). The two translations are set out below. The first one reads:

I, Hsu Yaw Hee, testator of this Will, being ill for a long time, physically weak and feeble, wish that, in case of any unfortunate mishap occurs, myself-bought estate (O.T. No. 15677) situated at Matang Road, Kuching be given to my 2nd brother Hsu Yaw Tang, 5th brother Quentin Hsu Kwang Tai and my wife Sung Swee Im, to take rightful possession so as to assist them towards the expenses of bringing up and educating my children until they become matured.

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