HIGH COURT, KUMASI
Date: 10 MARCH 1975
OWUSU-ADDO J
CASES REFERRED TO
(1) Bothamley v. Sherson (1875) L.R. 20 Eq. 304; 44 L.J.Ch. 589; 33 L.T. 150; 23 W.R. 848.
(2) Re Compton; Vaughan v. Smith [1914] 2 Ch. 119, 83 L.J.Ch. 862; 111 L. T. 245; 58 S.J. 580.
(3) Re Pearce; Crutchley v. Wells [1909] 1 Ch. 819; 78 L.J.Ch. 484; 100 L.T. 699; 25 T.L.R. 497; 53 S.J. 419.
NATURE OF PROCEEDINGS
PRELIMINARY RULING on whether a bequest to the plaintiff under his late father’s will was a specific or demonstrative legacy. The facts are adequately stated in the ruling.
COUNSEL
I. K. Boakye for the plaintiff.
Brobbey for the defendant.
JUDGMENT OF OWUSU-ADDO J.
The plaintiff herein took out a writ of summons against the defendant in her capacity as the administratrix of the estate of the late Yaw Frimpong with will annexed, for the sum of 016,308.32 being money received for and on behalf of the plaintiff, as intermediate incomes from the use of two tankers with the registration numbers GK 2623 and AT 6909 which were given to the plaintiff under the will of the testator.
By his will dated 14 September 1971, the testator appointed the Standard Bank (Ghana) Ltd. as sole executors and trustee of his will, but they renounced probate. On 23 May 1972 letters of administration with will annexed were granted to the defendant who is the residuary devisee and legatee under the testator’s will.
Under paragraph (5) of the said will the testator made the following bequest:
“(5) I bequeath two of my petrol tankers to my son Yaw Tieku (senior) absolutely and I direct and instruct my trustees that my said son shall be allowed and permitted to choose which said two tankers he of his own volition prefers before anyone else shall be permitted, allowed or suffered to touch any of them”.
[p.463] of [1975] 1 GLR 461
In the subsequent paragraphs (6) and (7) he bequeathed one each of his petrol tankers to his son Yaw Tieku (junior) and his chief fitter, Yaw Kenin. His residuary estate was absolutely bequeathed to his sister, the defendant herein. The testator died on 5 February 1972.
After close of pleadings the three issues which were set down for determination were as follows:
“(1) Whether or not the plaintiff is entitled to the intermediate incomes from the vehicles with the registration numbers GK 2623 and AT 6909 from the date of death, 5 February 1972 to 30 July 1972 when the plaintiff took possession of them subject to expenses.
(2) Whether or not any revenue from the tankers fell into residue until the right of selection was exercised by the plaintiff.
(3) Whether or not in the alternative the plaintiff’s entitlement if at all ought to be in the ratio of two is to fourteen (2:14) up to the date of selection.”
Barely one month after summons for directions had been taken learned counsel for the plaintiff filed a motion setting down for determination as a preliminary matter, the main point of law raised by the pleadings, namely:
“Whether or not in law the plaintiff is entitled to all the intermediate incomes or profits from the vehicles the registration numbers GK 2623 and AT 6909 from the date of the testator’s death — 5 February 1972 subject to the expenses connected with them, or from the date when the defendant vested the vehicles in the plaintiff.”
The gravamen of the argument advanced by the learned counsel for the plaintiff is that the gift of two vehicles to the plaintiff under the testator’s will was a specific bequest and as such the plaintiff is entitled to profits accrued from their use from the time of the testator’s death subject of course, to the expenses connected with operating them. The rival argument advanced by the learned counsel for the defendant is on two limbs. Firstly, counsel submitted that the bequest to the plaintiff is a demonstrative and not a specific legacy, and therefore until the plaintiff had exercised his right of selection the bequest remained contingent and only crystallised into a specific bequest after the plaintiff had selected the two vehicles. Secondly, the plaintiff is entitled to profits accrued from the date of selection since the exercise of choice was a condition precedent to the vesting of interest in the two tankers.
It is, I think, proper to refer to a few definitions of a specific legacy. At p. 76 of Parry, The Law of Succession (4th ed.), the following definition has been formulated: “A specific legacy is a gift of a specified thing or some distinguished or severed part of the testator’s personal estate.” At the same page the author quotes in extenso the definition of a specific bequest by Jessel M.R. in Bothamley v. Sherson (1875) L.R. 20 Eq. 304 at p. 309. It reads:
“in the case of a specific bequest it must be of a part of the testators’ property itself. That is the first thing.
[p.464] of [1975] 1 GLR 461
In the next place, it must be a part emphatically, as distinguished from the whole. It must be what has been sometimes called a severed or distinguished part. It must not be the whole, in the meaning of being the totality of the testator’s property, or the totality of the general residue of his property after having given legacies out of it. But if it satisfy both conditions, that it is a part of the testator’s property itself, and is a part as distinguished, … from the whole, or from the whole of the residue, then it appears to me to satisfy everything that is required to treat it as a specific legacy.”
Usually the subject-matter of a specific legacy is part of the testator’s estate at the date of his will as well as at the time of his death; but sometimes the contents may fluctuate between the date of the will and the date of the death of the testator. As a general rule, the specific devisee takes the property subject to all its burdens in the form of restrictive covenants, easements, rights and privileges and charges.
It is however settled law that a specific legacy to a person of an asset and of a subject producing income carries the income from the testator’s death: see Re Compton; Vaughan v. Smith [1914] 2 Ch. 119. On the other hand where a specific legacy ceases to be subject to the testator’s power of disposition or ceases to conform to the description given in the will, then the beneficiary receives nothing and is not entitled to any compensation for his disappointment out of the rest of the testator’s property.
Before deciding whether according to the true construction of the will, the bequest to the plaintiff under the testator’s will, has the attributes of a specific legacy or not, I shall briefly refer to the definition of a demonstrative legacy as given at p. 491 of Mellow’s Law on Succession (2nd ed.). It runs thus: “demonstrative legacy . . . is a gift of a general, that is, non-specific nature, directed to be paid from a particular fund.” The essential distinction therefore between a specific legacy and a demonstrative legacy is one of intention. In the case of the former the testator shows an intention that the beneficiary shall receive only the specific asset. But in the case of the latter, the testator indicates an intention that the gift shall be taken primarily from a specified fund or asset.
Here, the bequest cannot be described as contingent merely because the plaintiff had to exercise a right of selection. It is not a case where failure on the part of the plaintiff to exercise his right of selection would have resulted in uncertainty of the bequest so as to render it void. For if the plaintiff had failed to exercise his right of selection his bequest would have lapsed into the residuary estate. In this regard the contention of learned counsel for the defendant that if the plaintiff had not exercised his right of selection his bequest as well as the bequests in paragraphs (6) and (7) would have fallen into residuary estate, is untenable because the bequests in paragraphs (6) and (7) of the testator’s will were not contingent upon the bequest to the plaintiff. In other words, they did not survive or die together. Suppose the bequest to the plaintiff had fallen into residue by his failure to exercise his selection, the bequests in paragraphs (6) and (7) would not have been affected by the lapse of his bequest.
[p.465] of [1975] 1 GLR 461
Finally, the legacy to the plaintiff has in my opinion all the attributes of a “specific legacy” namely, it is a gift of an asset which forms part of the testator’s estate at the date of his death, and is distinguishable from the totality of the testator’s assets. Secondly, it is clear from the construction of the will that the testator intended it to pass in specie and the right of selection did in no way alter its specific character into that of a general or demonstrative legacy.
As I have already mentioned it is settled law that a specific legatee is entitled to profits accrued from the date of the testator’s death and at this stage I quote in support, the words of Eve J. in the case of Re Pearce; Crutchley v. Wells [1909] 1 Ch. 819 at p. 821: “when an executor gives his assent to a specific legacy the assent relates back to the death of the testator, and the specific legatee is entitled to the profits accrued due from the time of the testator’s death.” That being so, it seems to me to be right to hold that the plaintiff herein is entitled to accrued profits from the use of vehicles Nos. GK 2623 and AT 6909 from 5 February 1972 being the date on which the testator died.
I make no order as to costs.
DECISION
Order accordingly.
S. E. K.
