JUDGMENT

Suffian LP:

The following judgment was delivered in the High Court on 28 December 1974:

JUDGMENT

Chang Min Tat J:

This case consolidates two civil suits. In Civil Suit No. 98 of 1966 the plaintiff sued the three defendants personally and as executors and trustees of the estate of Choong Lye Hin deceased for payment of his share in the residuary estate of the testator and for ancillary reliefs. The amount was specified at $66,000 being the 2/13th share due to the plaintiff of the sum so far distributed to the other beneficiaries. The three defendants filed one defence, but when the case came up for hearing, the first and second defendants had died and the action was at the choice of the plaintiff not continued against their estates. This must be a matter for comment in the circumstances of the case since the action was against them personally as well as in their representative capacity. The defence became therefore that of the third defendant. He pleaded that he can set-off a sum of $108,805.62, being the aggregate of the estate duty payable on the gifts inter vivos to the plaintiff which were caught by estate duty, and accumulated interests thereon. On this set-off, the defendant counterclaimed for $42,805.62. This suit is hereafter referred to as the earlier suit.

In Civil SuitNo. 57 of 1968, (hereinafter referred to as the later suit), the plaintiff sued the defendants again personally and as trustees for his share in an account known as the Gim Kee, and for damages. He charged the defendants with failure to declare this account among the assets of the testator, thereby incurring unnecessarily penalty in respect of the estate duty that was paid late. There is also a counterclaim.

Part of the difficulty in this case stems from the compilation of the bundles of pleadings for the use of the judge. This procedural provision has been designed for the convenience of the judge, but it must be seen that it does not make for convenience, if in the several bundles of pleadings, every single amendment of the pleadings is shown. It would have been a kindness which I would have greatly appreciated if a simple bundle containing the pleadings as finally, settled had been submitted.

The plaintiff and the defendants were the four sons of the late Mr. Choong Lye Hin who died on 13 April 1948. In his will he bequeathed a two-thirteenth share in his residuary estate to the plaintiff, apart from a monthly allowance of a $100 to be increased to $200 a month on his marriage as well as a sum of $5,000 on his marriage. The sum of $5,000 was for marriage expenses as well as for purchase of jewelleries.

It should be explained at this stage that the four persons in this action are the sons of the testator by his first wife who had predeceased him as far back as 1933. The testator had two other wives who survived him and several children by them. He also had two daughters by his first wife. The defendants were his three eldest children and they were appointed by him to be trustees and executors of his estate. At the time when he executed the will in 1945, the plaintiff who was born in 1924 was then aged 21 years.

The testator appeared to have drawn a distinction between the sons by his first wife and those by his other wives or as they are commonly known, secondary wives. He classified the sons by his first wife, as is the custom among the Chinese to denote members of a certain generation, by giving them a middle name "Gim". His sons by his secondary wives who belonged to the same generation and could be called "Gim" were however known as "Eng". This is of some significance.

Probate in his estate was applied for and granted on 2 September 1948. The executors were at all relevant times acting by solicitors. The declared estate was valued at more than half a million dollars, but at that time when the estate duty affidavit was filled, no reference was made to include the gifts inter vivos made by the testator during the last three years o