SEY v. SEY AND ANOTHER [1963] 2 GLR 220

DIVISION: IN THE SUPREME COURT

DATE: 2ND JULY, 1963

BEFORE: ADUMUA-BOSSMAN, BLAY AND AKUFO-ADDO JJ.S.C.

CASE REFERRED TO

Roddy v. Fitzgerald (1857) 6 H.L. Cas. 823; 10 E.R. 1518, H.L.

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court, unreported, on the construction of a will. The facts are fully set out in the judgment of Blay J.S.C.

COUNSEL

C.F. Hayfron-Benjamin, Snr. with him N.Y.B. Adade, for the appellant.

J.E.C. Lutterodt for the respondents.

JUDGMENT OF BLAY J.S.C.

The short point for decision in this appeal is whether the learned trial judge was right in his construction of two clauses in a will which read as follows:

“(a) I give to my brother Kwamin Abadoo my two chambers and hall, one extra room occupied by Hazel and my big store.

(b) My brother Kwamin Abadoo is not to sell this house for any reason thereby to cause my children to go astray. He is to look after my children well and live with them peaceably and quietly as I had been doing”.

[p.21] of [1963] 2 GLR 220

The testator before the above bequest to his brother Kwamin Abadoo had bequeathed and devised his whole estate real and personal to his wife and children subject to certain “legacies” such as the one under construction. He also appointed executors of the will.

The appellant who is a daughter of the testator and suing on behalf of herself and her brothers claimed that the two clauses of the will quoted above, when properly interpreted or construed created Kwamin Abadoo a”trustee with respect to the house the subject of the several devises.”

In support of her claim, her counsel, Mr. Hayfron-Benjamin, relied on a passage in Halsbury’s Laws of England (2nd ed.), Vol. 34, p. 192. His contention appeared to be that since the testator had appointed executors of the will the said executors were empowered to deal with the whole estate, and that the testator having devised and bequeathed the whole of his “estate and effects, real and personal” unto his wife and children, the subsequent bequest to Kwamin Abadoo should be construed as a gift for life only and not as an absolute gift.

He further contended that since clause (b) of the will as quoted above enjoined Kwamin Abadoo not “to sell this house for any reason thereby to cause my children to go astray”; and was “to look after my children well and live with them peaceable and quietly as I had been doing”, it follows that the testator had intended to constitute the said Kwamin Abadoo as trustee for the children with respect to the said house.

The learned trial judge after hearing arguments of counsel for the parties rejected the appellant’s contention as held as follows:

“By clause (a) Kwamin Abadoo takes the devises in perpetuity. On his death the entire house does not vest in the plaintiff and her brothers absolutely as owners thereof. Clause (b) does not create Kwamin Abadoo a trustee with respect to the house”.

It is against the above interpretation that the appellant has appealed to this court on the ground that “the construction put on the clauses by the learned judge is wrong, having regard to the will as a whole”. Before this court, counsel has repeated in substance the arguments he advanced before the trial judge. He also referred to the case of Roddy v. Fitzgerald.1 With deference to learned counsel I do not think the decision in Roddy v. Fitzgerald2 is of any help in deciding the present case. In that case a testator devised a freehold estate to his son W. during his life, and after his death, to his lawful issue, in such manner, shares and proportions as he, by deed or will, shall appoint, and for want of such appointment then to his issue equally, if more than one; and, if only one child, to the said child; and failure of issue of W., to J. Another estate, consisting of freehold land, was devised in the same terms to another son J., and on failure of the issue of J., it was to go to W.J. and W., before the birth of any child to W. (J himself never married), joined in a recovery as to the land devised to J., and to which W. afterwards succeeded in possession [p.222] of [1963] 2 GLR 220 on J.’s death without issue. W. died, leaving four children; he had not executed any appointment, but during his lifetime disposed of both descriptions of lands to creditors for value. The court held that under these devises each of the first devisees took an estate tail by implication; that where in a devise there is a gift over on general failure of “issue,” it is presumed that the word “issue” has been used by the testator as meaning “heirs of the body”.

When the word “issue” is so employed, it is for the party seeking to give it a meaning other than that which it frequently bears, to show clearly from the context of the will that the testator intended to give it a different meaning. In the present case the testator made the devise to his brother Kwamin Abadoo without any limitation whatever. It is true that the testator before this specific devise, had made a general bequest of “the whole of my estate, real and personal, of which I may die possessed, or be entitled to, unto my wife and children”. He however proceeded to make specific bequests of which the devise to his brother is only one. Moreover after the general bequest to his wife and children as already stated he proceeded to make specific bequests to them as follows: “I give to my wife and children, one small store opposite my big store, and two chambers occupied by J.R.B. Arthur and J.K. Conduah. I give all the proceeds from the said small store to my wife and children. I give my wife the sum of fifty pounds (£50) to look after my children”. That being the case one is forced to look to the context of the will as a whole to determine what was the intention of the testator. And I agree with the learned trial judge that considering the will as a whole, it cannot be said that the testator intended to create Kwamin Abadoo as trustee. In my view the claim by the plaintiff derives no support in clause (b) above. Among Akan communities in Ghana, children have a right to reside in their father’s house provided they are of good behaviour. Therefore the mere fact that a testator in devising his house to his brother couples the devise with an admonition that the house be not sold so as not to render his children homeless, is no indication that the devise was not an absolute gift.

In my view therefore the learned trial judge gave a correct interpretation of the two clauses of the will submitted to him and I would dismiss the appeal with costs.

DECISION

Application dismissed.

K. T.