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PROBATE AND ADMINISTRATION.
Real property to By art. 103, all real or immovable property situate in China devolve as personalty.
belonging at the time of his death to any British subject, is to be deemed personal estate, and the devolution thereof in case of intestacy is to be governed by the law of England for the time
being relating to personal estate. Jurisdiction of By art. 104, the Supreme Court is to have as far as circumstances Consular Court as to probate and admit, for and within China, with respect to the wills and letters of adminis- property in China of deceased British subjects, all such jurisdiction tration.
as for the time being belongs to the High Court in England. But in non-contentious matters, probate or letters of administration may be granted by the inferior Courts.
Probate or administration so granted is to have effect over all property of the deceased within China, and to effectually discharge persons dealing with an executor or administrator thereunder, notwithstanding any defect afterwards appearing in the grant.
By art. 105, s. 51 of the Conveyancing (Scotland) Act, 1874, is extended. This enactment has been considered in the previous
. of. p. 97. Section. Resealing of pro
Probates or letters of administration or confirmation granted in bates granted in the United Kingdom, or in any colony to which the Colonial United Kingdom or colonies. Probates Act, 1892, extends (or duplicates sealed with the scal 55 & 56 Vict.c.6.
of the Court granting the same, or copies certified by or under the authority of that Court) shall be sealed by the Supreme Court, and thereupon shall be of the like force and effect and have
the same operation as if granted by that Court. Before sealing of. p. 121.
the Court is to be satisfied that all probate or estate duty has been duly paid, or that security has been given in a sum sufficient to cover the property (if any) in China, and may require such evidence as it thinks fit as to the domicil of the deceased person. It may also, on the application of any creditor, require before sealing that adequate security be given for the payment of debts due
from the estate to creditors residing in China. of. p. 122.
As already pointed out, this provision in the Order corresponds Operation of with the provision which is required by the Colonial Probates Act Colonial Probates
to be made in a colony with regard to probates granted in the Act with regard to consular United Kingdom, in order that probates granted in that colony may probates.
be re-sealed in the United Kingdom under the Act. It, therefore, satisfies the requirements of s. 3, and entitles probates granted by the Consular Court in China to be re-sealed in the United King. dom. By the inclusion of probates granted in any colony to which the Act has been extended by Order in Council under s. 1, the article also satisfies the requirements of legislation passed in any colony with a view to obtaining the benefits of the Act, and therefore entitles consular probates granted in China to be re-sealed in such colony.
By art. 107, where a British subject dies in China or elsewhere Custody of prointestate, his property in China is vested in the Judge of the perty of intestate. Supreme Court until administration is granted. The Court within whose jurisdiction any property is situate shall, if the circumstances so require, take possession of it and put it under the seal of the Court until it can be dealt with according to law. By art. 111, all testamentary papers or writings of a British Deposit in Court
of lestamentary subject dying in China are to be forthwith brought to the Court by
papers. any other British subject having them in his possession: or if necessary he may be ordered to do so by the Court. By art. 112, where the value of the property of a deceased per- Administration of
small estates. son does not exceed £50, the Court may administer it without any probate or letters of administration or other formal proceeding, paying the surplus to such persons as it thinks proper.
Consular Court to proceeding in the Consular Court shall be taken by action, and
be by action. shall be designated an action. And further, that for the purposes of any statute applicable under the Order to any civil proceeding in the Court, an action shall comprise and be equivalent to a suit, cause, or petition, or to any civil proceeding, howsoever required by the statute to be instituted or carried on.
The following Acts are adapted by arts. 125 and 126:-
19 & 20 Vict. The Evidence by Commission Act, 1859,
22 Vict. c. 20. The Evidence by Commission Act, 1885,
48 & 49 Vict.c.74. The British Law Ascertainment Act, 1859,
22 & 23 l'ict.c.63. The Foreign Law Ascertainment Act, 1861;
24 & 25 l'ict.c. 11. and ss. 7 and 11 of the Evidence Act, 1851, by art. 168. 14 & 15 Vict.c.99. These Acts are dealt with in the preceding Section.
of. pp. 88, seg. By art. 127, the Public Authorities Protection Act, 1893, is applied as if China were mentioned therein in place of the United
Kingdom, and as if this Order and Rules under it were therein referred to in addition to any Act of Parliament.
This Act has already been considered in connexion with the cf. p. 63. similar provisions contained in s. 13 of the Foreign Jurisdiction
Act. 44 & 45 Vict.c.41. By art. 163, s. 48 of the Conveyancing and Law of Property
Act, 1881, which relates to the deposit of instruments creating powers of attorney in the Central Office of the Supreme Court in England or Ireland, is extended with these modifications: the Office of the Supreme Court is substituted for the Central Office, and the Rules of Court under the Order are substituted for General
Rules. Deposit of powers
By this extension, an instrument creating a power of attorney, of attorney.
its execution being verified by affidavit, statutory declaration, or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the Office of the Supreme Court.
A separate file of instruments so deposited is to be kept, and any person may search the file, and inspect the instruments deposited, and he may have an office copy delivered to him on payment of the fee prescribed by the Rules of Court. Further a copy of an instrument deposited may be presented at the Office and may be stamped and marked as, and so become, an office copy.
An office copy of an instrument so deposited shall, without further proof, be sufficient evidence of its contents and of the deposit thereof in the Office of the Supreme Court. The section applies to instruments executed either before or after the commencement of the Act.
Rules of Court may be made for the purposes of the section, regulating the practice of the Office, and prescribing the fees to be taken therein, under art. 119.
Registration of mortgages.
By art 129, it is provided that deed or other instruments of mortgage, legal or equitable, of lands or houses in China, executed by a British subject, may be registered at any time after execution at the Consulate of the consular district wherein the property is situate. But if it is not registered within the time prescribed by art. 131, then the debt secured by the mortgage shall not have priority over judgment or simple contract debts contracted before
the registration. Registered deeds, &c., are to have, by art. 132,
& priority among themselves in order of registration. By art. 133, the Minister may with the approval of the Secre- Rules as to in
dexes of morttary of State, make rules with regard to the making and keeping of gages. indexes of mortgages, and searches therein, and for other matters connected therewith: and also with respect to unregistering any deed, &c., or for registering any release or satisfaction thereof.
BILLS OF SALE.
By arts. 134 to 150, certain provisions are made relating to bills of sale executed by British subjects, and intended to affect chattels in China.
Every bill of sale must conform with the following rules:(a) it must state truly the name, description and address of the Conditions of
valid bill of sale. grantor, and (b) the consideration: (c) it must have annexed thereto or written thereunder an inventory of the chattels comprised in it: (d) any defeasance, condition, or declaration of trust affecting the bill not contained in the body of it must be written on the same paper as the bill: and (e) it must be attested by a credible witness, with his address and description. In the case of failure to conform with these rules the bill is wholly void in China, except in the case of (C), when it is void only as regards the chattels omitted from the inventory.
If a bill of sale is not registered within the time prescribed by Registration of art. 138, it is from and after the expiration of that time void in China
(i) as against trustees or assignees of the estate of the grantor, in or under bankruptcy, liquidation, or assignment for benefit of creditors: and
(ii) as against all sheriffs and others seizing chattels under process of Court, and any person on whose behalf the seizure is made: but only
(iii) as regards the property in, or right to, the possession of such chattels comprised in the bill as, at or after the filling of the petition for bankruptcy or liquidation, or the execution of the assignment, or the seizure, are in the grantor's possession or apparent possession.
Bills of sale affecting the same chattels have priority according to their order of registration. Chattels comprised in a bill of sale
bills of sale.
are not in the possession, order or disposition of the grantor withn the law of bankruptcy.
Where there is an unregistered bill of sale, and within the time for registering a subsequent bill is granted affecting the same or some of the same chattels, for the same or part of the same debt, it is absolutely void to that extent, unless the Court is satisfied that it was granted in good faith to correct some material error in the prior bill, and not for the purpose of unlawfully evading the operation of the Order.
Registration must be renewed every 5 years, and on failure to renew the bill is to be deemed unregistered. Transfers and assignments need not be registered. If the failure to register or to renew the registration is accidental or inadvertent, the Court may allow the error to be rectified.
The power to make rules as to indexes, &c., of bills of sale, corresponding with those of the Minister in the case of mortgages, is conferred on the Judge of the Supreme Court.
Renewal of registration.
Indexes of bills
General Legislation for Foreign Jurisdiction. The application of the law in its different branches and jurisdictions dealt with in the foregoing pages of this Section, is special in the case of each oriental country. Up to the present time this method of legislating for foreign jurisdiction has been
invariably adopted, in spite of its very cumbersome results. But General legisla-, in 1904, the outbreak of hostilities between Russia and Japan, tion in respect of and the necessity for taking the usual steps to proclaim and neutrality adopted in 1904. enforce the neutrality of Great Britain, so far as her subjects in
different parts of the world were concerned, was made the occasion of a new departure. In the colonies on similar occasions it is usual for the Governors, acting on instructions from home, to issue the necessary proclamations, (practically reproductions of the King's proclamation in the Mother Country, which consists in
the main of recitals of certain sections of the Foreign Enlistment 33 & 34 l'ict.c.90. Act, 1870), enjoining all persons within their respective Govern
ments to obedience thereto.
On the occasion of the war in 1904, however, the necessity for similar action on the part of the Government with regard to