IN RE DADZIE (DECD); DADZIE AND ANOTHER vs. ADDISON AND ANOTHER [1999-2000] 2 GLR 291

CASES REFERRED TO

(1) Grey v Pearson (1857) 6 HLC 61; 10 ER 1231.

(2) Allen (Decd); Re; Faith v Allen [1953] 2 All ER 896; [1953] 3WLR 637.

ACTION in the High Court, Sekondi seeking an interpretation of a clause in a will. The facts are fully set out in the judgment of the court.

Ebow Quashie (with him Miss Lady E Quashie) for the plaintiff.

No representation by or for the respondents.

Asamoah J. This is an action seeking a judicial interpretation of paragraph 8 of the will of the late Kweku Bordoh Dadzie probate of which was granted by the High Court, Sekondi on 12 January 1998. In paragraph (4) of the affidavit in support of this application the applicants state:

“. . . that the wording of paragraph (8) of the said will, more particularly the use of the word ‘shares’ appears to be ambiguous to the applicants for the following reasons:

(i) The testator incorporated the said hotel as a limited liability entity which had become defunct at the time of his death.

(ii) At the time of death the testator had rented the premise known as Lagoonside Hotel to the defendants at rent.”

And the said paragraph (8) of the will reads:

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“I make the following bequests (sic):

To my wife Alice Bordeh Dadzie, Thousand Cedis (¢1,000) shares in Lagoonside Hotel Limited.

45 per cent shares to Mrs Rose Dadzie and her daughters.

30 per cent shares to my six children with my wife Alice Bordoh Dadzie (Mrs).

5 per cent shares to my sister Kate Mensah (Mrs).

5 per cent shares to Dr Kofi Nyankum Dadzie.

5 per cent shares to Martin Dadzie (Cousin).

10 per cent shares to Emma Quarcoopome (Sister).”

It is a sure principle of law relating to the construction of any written instrument that the contemplation of the party as can be gleaned from the text of the instrument is what the interpreter of the instrument should advert his mind to and uphold and not what may be surmised. A fortiori, it is not necessarily the etymological sense of the word or words used which is to be adhered to, but the effect that the author of the written document intended the word or the words to have. Lord Wensleydale, formulating a rule of construction of written instruments in the case of Grey v Pearson (1857) 6 HLC 61 at 106, expressed himself as follows:

“In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency but no further.”

At the time that the testator made his testamentary disposition under consideration, the Lagoonside Hotel Ltd was in existence; but before his death it had become defunct. When the will was made it was the intention of the testator that whatever financial benefits accrued in the running of the hotel should be distributed to the beneficiaries stated in paragraph 8 of the will in the percentage proportions therein stated. Now at the time that the will became operational the building in which the Lagoonside Hotel Ltd was being run still existed but the commercial use to which it was put as a hotel had long been converted into a completely different commercial enterprise. This time the Lagoonside Hotel Ltd was no more, it had been converted into rental accommo-

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dation. What has happened is a change in the nature of the original commercial activity, but the income yielding activity to which the hotel building was put remained undisturbed.

Surely, it was the intention of the testator that the profits accruing from the operation of the defunct hotel business should inure to the benefit of the named beneficiaries in paragraph (8) or the will in the percentage proportions specified. The source from which the benefits from the shares of the Lagoonside Hotel Ltd accrued was the existence of the hotel building. The hotel building as a business entity is now metamorphosed into rental property. The fountain of the share income has not been destroyed; it is producing rental income instead. It was never in the contemplation of the testator that this fountain of the hotel building would ever produce income which would be different from that which it was producing when the hotel was in operation.

This is a situation where the rules of construction would require that the ordinary sense of the word “shares” should be modified to avoid absurdity so as to uphold the intention of the testator and not destroy same. In all cases of construction, all that the court is required to do is to give the words in the will an import which would give effect to the will and not to defeat the intention of the testator. This stance of the law was eloquently stated in the case of Re Allen (Decd); Faith v Allen [1953] 2 All ER 898 at 904 where Sir Evershed, MRcourt stated as follows:

“. . . in the case of a will it is in general the function and duty of a court to construe the testator’s language with reasonable liberality and to try, if it can be, to give sensible effect to the intention he has expressed.”

The sensible construction then that can be put on the word “share” is no other than the rental income accruing from the building and it is to be so construed.

Order accordingly.

EA