FOUNDATION ESTABLISHED BY TESTAMENT – DEBT BELONGING TO LEGACY Founder AND
INCLUDED IN THE FOR THE FOUNDATION SEPARATE POWER.
When it is assumed that at the time when the foundation is born, in this case upon the death of the heir by the to enter into force of her will, the separated good disappears from the founder’s assets, the disputed claim is immediately transferred to the foundation’s assets.
However, when the foundation is considered a legatee, has the claim passed to the foundation, because the will must then be regarded as the deed, which is necessary to to transfer a claim.
- Lady Chong Njie Kioen,
- Lady Chong Njie Joen,
- Lady Chong Njie Kioe,
first claimants, later appellants, all residing in China, and - Chong Tung Jan, merchant, residing in Medan, first plaintiff, later appellant,
against
Tjong Hau Lung aka Chang Pu Ching, merchant, residing in Medan, first defendant, later appellant, and
Lady Chong Njie Loen, - Chong Tong Mau,
- the heirs of the late Tjong Kong Lip aka Tjong Seng Liong: a. Lady Yap Swee Khim and b. Chong Tung Yuh, first co-defendants, later appellants, all residing in Medan.
- I. First instance judgment:
The Land Court in Medan;
With regard to the facts:
Oh, that the 3 claimants and plaintiff, all children and heirs of the deceased Tjong Hian Liong, have filed a claim against the defendant in respect of the following:
according to private confession of guilt ddo. May 17, 1921 defendant acknowledged in respect of money lent to Lady Tjie PakMe alias Tji An Yong, residing in Medan during her lifetime, is owed an amount of NLG 112,400 – interest 1Vz% per year;
that on this debt NLG 2,400 in principal and NLG 845 in interest has been paid, so that the principal sum remains NLG 110,000.-;
that when Tjie Pak Me died on July 11, 1940, neither did this debt the interest thereof had been paid;
that this debt belongs to the estate of Lady Tjie Pak Me belongs; that, etc.
that according to the will the daughters are her share of the inheritance have received so that the sons or their legal descendants are entitled to this claim and these sons are: Tjong HianLiong, who is deceased (claimants’ and plaintiff’s father) defendant and 3rd co-defendant (Tjong Kong Lip aka Tjong Seng Liong, who died in the proceedings at first instance, Red.);
that Tjong Hian Liong died in China in 1932 and except his wife Lee Toon Sam bequeathed his now adult children, namely the three claimants and plaintiff and a certain Chong NjieLoen, residing at the home of the defendant and Chong Tong Mau, which is located in China but has a nominee in Medan namely, Lie Sie Moy, also residing at the defendant’s home, which two
persons persons in the proceedings must be involved as co-defendants to adjourn and condemn any conviction, as well as the third son of heiress named Tjong Kong Lip aka Tjong Seng Liong;
that now plaintiffs, as Tjong Hian Liong’s inheritance names claim the sentencing the defendant to pay the aforementioned debt interest over 5 years in total NLG 110,000.- principal and NLG 41,250.-
interest, so together NLG 151,250 – with the statutory interest and costs of the proceedings, etc. in addition to convicting co-defendants adjourn and tolerate this conviction;
O., that defendant has replied (inter alia, Ed.):
that he owed a debt of NLG 110,000 to his mother Tjie Pak Me but this debt to the satisfaction of the creditor has paid;
that Lady Tjie Pak Me passed away on June 11, 1940 in Medan and by will dated.
August 4, 1926 a foundation in life has called with all benefits contributed to the foundation; that if the debt would still have existed at the time of it death of Lady Tjie Pak Me this claim in the foundation would have fallen and under the provisions of the foundation deed, so that none of the heirs can claim this amount;
On the basis of which he has requested not to receive the claim, or at least to deny it;
Oh, that etc.
that parties have a few things back and forth argued, of which as of most importance remains to be here it is stated that Claimants and Plaintiff have asserted that which is not contradicted by the defendant:,
that, when the estate of Lady Tjie Pak was to become Me divided, the heirs do not abide by the will, where the foundation was established, and have held the estate between them is divided and only part of the belongings to the foundation have fallen viz. a number of houses, while further
revealed that a Japanese body has a ruling in this case and the defendant has proof of discharge at the hearing which evidence in these proceedings is by Claimants and Plaintiff submitted; etc.
With regard to the law:
Post alia:
Oh, that We first want to consider the defense of the defendant, that all proceeds of the estate go to the foundation cases and Claimants and Plaintiff cannot claim anything from the Defendant, since the claim they wish to assert niaken, has fallen into the foundation;
that from the submitted will of Lady Tjie Pak Me it appears that on August 4, 1926, she entered a foundation in a will was created, taking all within the island of Sumatra assets belonging to her estate belong to that foundation intended;
that further the will reads (page four in the middle):
»I appoint my son as executor of my dispositions of property, deliverer of my funeral and keeper of my estate. long Hau Lung aforementioned, giving him all power to export, dispositions of property upon death can be given.
He is obliged within six months of my to draw up or make a complete inventory of the death
format, which can also serve as a full indication of the assets of the foundation.
Under the burden of the aforementioned disposition of my assets, etc. I appoint as my only heirs my three sons “;
O. that there are several theories about how the foundation, established by will, succeeds in its separate assets (see Suijling le stuk le part p. 148 *) and Asser Scholten part I, fifth edition, p. 696, H.R. 11 March 1932 N.J. 1932 p. 698);
that some believe that at the time of the foundation is born (here on the death of the heiress by the
enactment of her will) excludes the secluded property the founder’s estate would disappear, while others maintain that the foundation succeeds the foundation in the usual way as heiress or legatee (see Judgment H.R. 11 March 1932 N.J. 1932 p. 698 2);
O., that, if one follows the first theory, the debt claim on which the parties litigate is immediately transferred into the assets of the foundation (for the reasons on which this can be assumed, see the P.G. in its Opinion for the above-mentioned Judgment), so that defendant rightly argues that plaintiffs and plaintiff have no right to collect the claim that is up to the foundation’s assets
belongs;
Oh, that also, when one considers the foundation as a legatee, to which the words of the will give every reason give, the claim has passed to the foundation;
that also in the theory, which does not, like the Supreme Court in real estate, assumes that the legatee directly obtains without the need for delivery (see Suijling part VI p. 435), the will is to be regarded as the deed required is to pass the claim (see Suijling p. 436 spot note 4);
O. that Plaintiffs and Plaintiff must therefore be declared inadmissible with their claim; etc.
n. Judgment on appeal:
In law:
O., that the appellants lodged an appeal in good time from the additional reports judgment and appeal are also otherwise admissible;
O., that appellants in the appeal memorial submitted by them as Mainly put forward grievances against the judgment, stated succinctly:
1) that among the heirs of the late Tjie Pak Me, including also to report foundation, having taken place divorce and division, it was agreed that only half of the relevant assets would be allocated to the foundation;
2) that this half was allocated to the Foundation at the time of that divorce
and division was fixed in some 33 houses in Medan;
3) that the remaining assets were allocated to the joint heirs of the late Tjie Pak Me;
4) that the claim, currently in dispute, would remain in the undivided part for the time being, since the heirs believe about this claim
differed;
O, that the above grievances – if proven – the correctness of the judgment;
O., however, that the appellants have in no way proven – nor to have presented evidence – that the facts stated by them are correct
to be; that, on the contrary, it is clear from the notarial deed of separation and division present with the procedural documents that an agreement as stated by the appellants – was not made; that in this one deed – insofar as relevant to this case – only drawn up
Became:
1) that all heirs claim their legal inheritance from one another and from the Foundation;
2) that interested parties have reserved their rights to regarding the debt which Tjong Hau Lung might have to his late mother;
O., that the Appeal Council cannot judge whether and, if so, to which amount, the legitimate one will be affected in case it should be established and established that Tjong Hau Lung had a debt large pro resto 110,000 guilders to his late mother; that this question also incidentally has not been asked by the appellants and is therefore out of dispute;
0 “that the will of the late lady submitted in the trial Tjie Pak Me completely controlled the party’s relationship, now nothing evidence of a further agreement between the parties; that conforms to this will all concerning property – including no doubt the claim in question, if it still exists, has been allocated a-an the Foundation created by the will;
O., that the Appellate Council takes over the grounds and means of it judgment, of which appeal, further motivated as stated above, so that the judgment rendered can be confirmed as correct and correct; etc.
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