HIGH COURT, ACCRA
DATE: 29TH JANUARY, 1962
BEFORE: OLLENNU, J.
CASE REFERRED TO
In re Aldersey; Gibson v. Hall [1905] 2 Ch. 181
NATURE OF PROCEEDINGS
ACTION by the plaintiff, successor to one of four children, to claim one-third share of property devised to the said four children, on the ground that one of those children must be presumed to have predeceased the testator. The facts are more fully set out in the judgment.
COUNSEL
Nelson Cofie for the plaintiff.
Koi Larbi for the defendant.
JUDGMENT OF OLLENNU J.
A man by the name of Alfred George Peters, late of Accra, had four children, namely: Mary Adeline Addo (nee Peters), George James Peters, John Archibold Biala Peters and Robert Alexander
[p.35] of [1962] 1 GLR 34
Gaskin Peters. The first two, Mary Adeline and George James had different mothers, but the last two, John Archibold Biala and Robert Alexander Gaskin had one mother. The plaintiff is the daughter of George James Peters.
Robert Alexander Gaskin Peters left home in 1923, and their father died on the 19th August, 1924. By his will, probate of which, exhibit A, was granted on the 11th October, 1924, to the executors named therein, Alfred George Peters devised, among other real properties, a piece of land situate on Club Road, Accra, to all his four children in equal shares. George James, the father of the plaintiff died on the 11th October, 1952.
By a deed dated the 11th November, 1955, Mary Adeline, John Archibold Biala on behalf of themselves, and the plaintiff as personal representative and successor by customary law to her late father George James, demised the said Club Road property to one Mouhamed Aid Traboulsi, a Lebanese trader. It was recited in the said deed that Robert Alexander Gaskin “left the Gold Coast (now Ghana) for Europe over 30 years ago without leaving any address nor has been heard of ever since his departure and his death can safety be presumed and without leaving any issue after him surviving to succeed to his individual share.”
In accordance with the terms of the said lease, the tenant paid an amount of £G6,120 to the landlords as rents in advance. The defendant paid one-fourth of that amount to the plaintiff as her father’s share.
The plaintiff, however, claims that she is entitled to one-third and not one fourth share of the said estate, and has now sued the defendant claiming an amount of £G510 the difference between one-third and one-fourth share of the rents paid in advance. The claim of the plaintiff is based upon a contention that Robert Alexander Gaskin having died, the property vested in only three children of the testator and not four.
In support of her claim it was submitted on behalf of the plaintiff that the recital in the lease, exhibit B, that Robert Alexander Gaskin left home about 30 years before the date of the lease, that is November 11, 1955, and has not been seen or heard of since and so must be presumed dead, is binding upon the parties to this suit who are also parties to the lease, and that the said recital should be accepted as conclusive evidence that he, the said Robert Alexander Gaskin, predeceased the testator.
Simple mathematical calculation shows that the said submission of counsel is quite wrong. Thirty years prior to 1955 takes us back to 1925 which is one year after 1924 the year in which the testator died. At common law presumption of death does not arise until seven years after the year when a person was last seen or heard of. It follows that even without further evidence the presumption that Robert Alexander is dead could not have arisen until seven years after 1925 the year when according to the recital in the lease, he was last seen and heard of. Therefore far from the recital relied upon by the plaintiff being conclusive that Robert Alexander Gaskin predeceased his father, the testator, it is definitely conclusive evidence that he survived his said father the testator.
But quite apart from the recital, there is the oral evidence given by D.W.1, the only daughter of the testator, that her brother Robert Alexander Gaskin came home in 1935. There is also exhibit C. a letter dated the 19th February, 1936, undisputedly written by him in his own handwriting to his sister, showing that he was very much alive in 1936.
[p.36] of [1962] 1 GLR 34
A will takes effect upon death of the testator, and therefore all beneficiaries under the will who survive the testator take under the will. The share of any one who predeceased the testator, lapses and falls into residue. In law therefore a person claiming the share of a deceased devisee under a will takes upon himself the onus of proving that the devisee through whom he claims survived the testator: see In re Aldersey; Gibson v. Hall.1(1) But in this suit the plaintiff alleged that the devisee Robert Alexander Gaskin has no interest in the estate, therefore the onus is upon her to prove that the said Robert Alexander Gaskin predeceased the testator. She has failed to do so. The defendant on whom there is no onus to prove anything has fully discharged the onus which would have been on him had he been a plaintiff claiming what he has pleaded here. He has proved conclusively that his brother, the
person presumed dead, survived their father the testator.
Since Robert Alexander Gaskin survived his father the testator, one-fourth share of the Club Road property vested in him, and any other property or share of property devised or bequeathed to him under his father’s will vested in him upon the death of his father. That being the case he, Robert Alexander Gaskin, died possessed of the one-fourth share of the Club Road property, and possessed of any other property or share of property devised or bequeathed to him by his said father. That one-fourth share which he owned in the Club Road property passed upon his death intestate to his successor by customary law. The plaintiff not being his successor is not entitled to any share of his estate. Upon the evidence before the court, the proper person entitled to succeed the said Robert
Alexander Gaskin is the defendant, his brother of the whole blood. Therefore the defendant is the person entitled to hold the said one-fourth share of his said deceased brother.
The plaintiff’s claim is dismissed and judgment entered for the defendant with costs fixed at 30 guineas inclusive.
DECISION
Action dismissed.
