GYASI v QUAIGRAINE [1963] 2 GLR 161

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 26TH JUNE, 1963

BEFORE: SOWAH J.

CASES REFERRED TO

(1) Chichester Diocesan Fund and Board of Finance v. Simpson [1944] A.C. 341, H.L.

(2) Spark v. Purnell (1614) Hobs. 75; 80 E.R. 224

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff for a declaration of title to the estate of the late J. E. Biney on the ground that on the death of the nephew of the said Biney, the sole devisee under Biney’s will, the interest in the estate reverted to Biney’s family.

COUNSEL

D. Myles Abadoo (with him Dr. J. W. de Graft-Johnson) for the plaintiff.

T. D. Brodie-Mends holding C. F. Hayfron-Benjamin’s brief for the defendant.

JUDGMENT OF SOWAH J.

In this action the plaintiff’s claim is for:

“A declaration of title that the estate of the late J. E. Biney, member of the Dihyina family of Tuakwa and Cape Coast, comprising lands and houses and personality of which the late J. B. Apprey, as heir and/or successor of the late J. E. Biney and administrator of his estate, became possessed during his lifetime, is the property of the late J. E. Biney’s family, the Dihyina family of Tuakwa and Cape Coast aforesaid, and that upon the death of the late J.B. Apprey the right of appointing a member of the family as successor and administrator of the family property rests with the family and not otherwise.”

[p.163] of [1963] 2 GLR 161

The other remedies sought on the writ are grounded upon the basis that the plaintiff does succeed on obtaining the declaration. The plaintiff bases his claim upon the interpretation of the late Biney’s will. By clause 3 of the will, i.e., exhibit A, the testator made the following devise:

“I also appoint my dearly beloved nephew J. Brodie Apprey to be my sole heir and administrator of all my estate—viz. — my movable and immovable properties at Cape Coast and elsewhere—my personal and real effects—all my gold mining and diamond mines concessions in the Colony with all my shares therein—my Current and Fixed Deposits in the Banks of England and British West Africa Ltd., Cape Coast—my arable and other lands, and cattle and other things pertaining to the estate.”

By a codicil dated the 11 th August, 1936, the testator in clause 11 of the codicil defines what he means by administrator and I quote:

“By my Last Will I have appointed my nephew J. Brodie Apprey to be my sole Heir and Administrator of all my estate. But by ‘Administrator’ I do not at all mean to place him conjointly with my said four executors, but only to administer also to the needs and requirements of the members of my household and those of my near relations abroad in the same way and manner as, in life, I would do myself as particularised in my said Will. In witness whereof I have hereunto set my Hand this 9th day of September, One Thousand Nine hundred and thirty-six.” It is significant to note that the testator failed to define what he meant by “sole heir” and nowhere in the will did he make any attempt so to do.

Before dealing with the construction of these two clauses in the will, it is necessary to say in passing that written wills are unknown to customary law: see Sarbah’s Fanti Customary Laws (2nd ed.), page 95. Written wills, as far as this country is concerned, are the creation of statute; any provision in a will must necessarily be construed in accordance with the English rules of construction as appertain to this country. It is one of the fundamental rules of construction that in construing a will the intention of the testator must be collected from the will as a whole but it is also a fundamental principle that the testator must employ language which conveys his intention clearly.

Jarman on Wills (8th ed.), Vol. 3, pages 2065-66 contain the following warning to the unwary: “…though the intention of testators, when ascertained, is implicitly obeyed, however informal the language in which it may have been conveyed; yet the Courts, in construing that language, resort to certain established rules, by which particular words and expressions, standing unexplained, have obtained a definite meaning; which meaning, it must be confessed, does not always quadrate with their popular acceptation. This results from the intendment of law, which presumes every person to be acquainted with its rules of interpretation, and consequently to use expressions in their legal sense.”

[p.164] of [1963] 2 GLR 161

One of such expressions is “sole heir.”

In this connection I will refer to the English case of Chichester Diocesan Fund and Board of Finance v. Simpson.1 In this case the testator Caleb Diplock directed his trustees to apply the residue of his estate, “for such charitable institution or institutions or other charitable or benevolent object or objects in England,” as his trustees in their absolute discretion select.

Reading his will as a whole, one would say that the testator by his will intended to benefit objects of a charitable character, nevertheless the words employed by him were words held not to be sufficiently precise enough to convey his intention and that by the words used in the will the trustees could have applied portions or all the fund to benevolent objects of non-charitable nature. It was held that the words were vague for uncertainty in accordance with English law.

I cite this case to show that not only must a testator make his intention clear but he must employ such language as to leave no doubt as to what the intention is. If he employs technical language, the words will be construed in their technical sense unless he makes it plain that he does not wish the technical words to be understood in their technical sense.

In this case the testator employed the following words: “I also appoint my dearly beloved nephew J. Brodie Apprey to be my sole heir and administrator.” The testator then defined what he meant by administrator. Sole heir was not defined. If he had meant the two expressions to have the same meaning, he would obviously have said so, for there is nothing in law preventing him from saying that by “sole heir and administrator” he meant the definition or meaning that he gave to administrator alone. In my view the testator adverted his mind to those words and if he had wished the words “sole heir” to have a different connotation from their technical meaning he would have said so.

It was submitted that “sole heir” should be construed ejusdem generis to administrator. I need hardly say that such a construction would run contrary to all rules of construction. Words are interpreted ejusdem generis when specific words of the same genus are followed by general words. Maxwell on Interpretation of Statutes (10th ed.), page 337 puts it as follows: “It is, however, the use of a general word following, but not preceding, other less general terms ejusdem generis which affords the most frequent illustration of the rule under consideration.” On the same page the learned author says, “But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words.” I do not think that I will be justified in construing the words “sole heir” as meaning the same thing as administrator or as meaning successor according to native custom, as such a construction in my view would be doing violence to the language of the testator.

[p.165] of [1963] 2 GLR 161

In Spark v. Purnell2 cited also in Jarman (supra) it is said that if a testator appoints a person as the heir of his land, the devisee shall have it in fee for such estate as the ancestor had, such is the devisee to inherit. In my view by clause 3 of the will, Apprey took the absolute interest. It is however necessary to consider whether this interest is cut down by subsequent provisions in the will. I must therefore consider the provisions of the will by which the theory is advanced that Apprey was meant to be a trustee on behalf of himself and for the plaintiff’s family.

It was submitted that by clauses 5, 6 and 11 a precatory trust was created. It is conceded that the testator did not use language clearly imposing a trust but a court is entitled on the construction of the whole will to come to the conclusion that a binding trust is effected by the precatory words.

In this connection I will precede my examination of the issue with the following words from the speech of Lord Macmillan in Chichester Diocesan Fund and Board of Finance v. Simpson3:

“My Lords, the law, in according the right to dispose of property mortis causa by will, is exacting in its requirement that the testator must define with precision the persons or objects he intends to benefit. This is the condition on which he is entitled to exclude the order of succession which the law otherwise provides.” In clause 5 of the will, the testator charges his administrator with the following duties: “(a) To embrace in love all my blood relatives at Tuakwa, Ayanmaim, Anomabu and Girancuma.

(b) Always treating them well.

(c) Giving them all helping hand when required — protecting them, and accommodating those who may at any time visit the town from their villages in the same and manner as I had been doing myself.”

In clause 6, the charge is as follows:

“(a) Unite together all my household men—and maid-servants in my own residential house and in my other out-houses in perfect peace.

(b) Seeking at all times their interest and well-being—protecting them from trouble—supporting and maintaining them, and treating or regarding them all as one indivisible family.”

In clause 11, the direction is as follows:

“Should any of my people or relatives in the village of Tuakwa or Ayanmaim or elsewhere, at anytime visit Cape Coast for a time and return, he or she be accommodated in the said Akobina Biney’s quarters or in any other vacant room under my said residential house.”

Clause 12 deals with arable lands.

The most important omission in these clauses is that nowhere did he direct that specific funds left by him to Apprey should be used by Apprey

[p.166] of [1963] 2 GLR 161 in a particular way. He leaves it entirely to the discretion of the donee what he should do. It is not part of the functions of a trustee “to embrace in love” blood relatives or to give a helping band or to protect them.

In my view the clue to what the testator had in mind can be found in the following words: “In the same and manner as I had been doing myself.” It does show that the testator with his own individual funds and property was extending a helping hand to his relatives and all he requires of the donee, is that having left to him the bulk of his property, he should continue to do the same as he was himself doing in life. I do not think such directions should make the donee a trustee of the properties. The discretion embodied in this direction is too wide to be enforceable by any court which is called upon to enforce such trust. It has always been held that where the donee is given too wide a discretion as to the disposition of the property, the idea of trust is excluded: vide Jarman on Wills ( 8th ed.), Vol. 2, page 870.

A more important reason why no precatory trust can be inferred from the words of the testator is that the objects to be benefited are too vaguely designated to make it enforceable. The plaintiffs are relying on clause 5 of the will for their declaration, but in clause 5 the object to be benefited is not the Dihyina family of Tuakwa, it is, to quote his words: “My blood relatives at Tuakwa, Ayanmaim, Anomabo and Girancuma.”

“Blood relatives” is not a term of art.

He failed to define what he meant by “blood relatives.” Does the testator by that phrase mean all those persons who trace their descent from his father and mother, or from his grandmother and grandfather or from his great-grandmother and great-grandfather going backwards ad infinitum? In my view the expression “blood relatives” is so vague, that the testator could not have intended to create a trust. In this connection I will refer again to the case of Chichester Diocesan Fund and Board of Finance v. Simpson4 where it is stated that for a gift to take effect the testator must designate with precision the class of persons or objects to be benefited. “The class must not be described in terms so vague and indeterminate that the trustees are afforded no effective guidance as to the ambit of their power of selection. “ In clause 11 the objects to be benefited are even more vaguely described. They are, “My relatives or people in the village of Tuakwa or Anyamnaim or elsewhere.” Bearing in mind that the testator was a chief, does he mean by “people” to refer to all those persons over whom he ruled as a chief, or by “people” he meant his family in the broadest possible sense?

In my view the word “relatives” is itself vague. It is significant to note that in clauses 5, 11 and 12 on which the plaintiff is relying, the word “family” was omitted. The testator was said to be an Akan and a chief who had more than his full share of the span of life and must surely have been in his lifetime acquainted with family set-up in Fante society, yet he carefully omitted the use of the word which at least has a legal meaning attributable to it, that is to say, “family,” except in clause 6 [p.167] of [1963] 2 GLR 161 where he includes persons who could not even be designated members of his family.

In the result I am unable to hold that a precatory trust can be spelled out in favour of the Dihyina family of Tuakwa from the testamentary dispositions made in this will. In my view the testator meant Apprey to take the absolute beneficial interest in these devises, but imposed upon him the moral obligations that Apprey whilst enjoying this property should so conduct himself towards these vague and indeterminate groups as he, the testator, was himself doing with his self-acquired property in his lifetime. I hold that there is no proof that the Dihyina family of Tuakwa has any properties in the hands of J. B. Apprey during his lifetime in which the defendant has intermeddled. Accordingly I dismiss the plaintiff’s claim and enter judgment for the defendant with costs assessed at 75 guineas.

DECISION

Application dismissed with costs.

K. T.