The remaining one-third of the entire estate goes to those entitled in accordance with the customary law which applies in Osu (Christiansborg). Succession in Osu (a Ga-Adangbe community) is patrilineal. By customary law, children in a patrilineal family community belong to their father’s family, and are entitled to enjoy their father’s estate. Again by customary law, all children however born are entitled to enjoy equally. Consequently all the three sets of children of the late Stephen Coleman, namely, his three children by Adeline Johnson, the plaintiff and the ten children by the defendant are part and parcel of his family entitled to share in the personal property, and to continue enjoyment of the real property.
It is clear therefore in view of the powerful judicial criticism alluded to, that the old view that members of the donor’s family must participate in a gift either by attesting as witnesses or giving their consent no longer retains any credibility. With respect, therefore, the learned trial judge erred in elevating to the pinnacle of an essential requirement of a gift inter vivos, the consent or prior viewing of the subject-matter of the gift by members of the donor’s family.
It is conceded that according to native customary law (Ashanti) applicable in this case, upon the death of the owner of a self-acquired property, the property would devolve upon the successor, who should be one of his sisters' children, males preferred to females; but such property does not become part of the ancestral property belonging to all those known as “family,” who claim descent from a common ancestress.
Liability of a successor for the debts of the deceased
In practice, then, the customary law of making the successor liable to pay debts of his predecessor out of his own pocket has been modified, and limited to the value of the estate which comes into the hands of the personal representatives. The question does not arise here, because the debt which deceased owed to defendants was paid out of the estate. But I refer to it to show that, under the native customary law, as well as under the English law applicable, the administrators are required to settle all the debts of the deceased from the estate before distribution of the assets.
