IN RE AMUZU BANINI; BANINI AND OTHERS vs. KWAKU BANINI [1973] 1 GLR 17

CASES REFERRED TO

(1) Ford v. Ford (1848) 6 Hare. 486; 67 E.R. 1256.

(2) Pearks v. Moseley (1880) 5 App.Cas. 714; 50 L.J.Ch. 57; 43 L.T.449; 29 W.R. 1, H.L.

(3) Re Gardiner’s Estate; Garratt v. Weeks (1875) L.R. 20 Eq. 647;45 L.J.Ch. 193.

(4) Kingsbury v. Walter [1901] A.C. 187; 70 L.J.Ch. 546; 84 L.T.697, H.L.

(5) Weld v. Bradbury (1715) 2 Vern. 705; 1 Eq.Cas.Abr. 203; 23 E.R.1058.

(6) Watson v. Hayes (1839) 5 My. & Cr. 125; 9 L.J.Ch. 49; 4 Jur. 186;41 E.R. 319.

(7) Langston v. Langston (1834) Bli. (n.s.) 167; 2 C1. & Fin. 194; 6 E.R. 1128; 48 Digest (Repl.) 408, H.L.

[p.19] of [1973] 1 GLR (8) Tucker v. Harris (1832) 5 Sim. 538; 2 L.J.Ch. 18; 58 E.R. 440; 48 Digest (Rel.) 433. (9) Mendes v. Mendes (1747) 3 Atk. 619; 26 E.R. 1157.

NATURE OF PROCEEDINGS

ACTION by the plaintiffs against the defendant executor for their portion of the estate of their deceased father in accordance with the terms of his will. The facts are fully set out in the judgment.

COUNSEL

Doku for the plaintiffs.

Dr. Obed Asamoah for Boye for the defendant.

JUDGMENT OF ATA-BEDU J.

The plaintiffs are seven out of twenty surviving children of their late father Abraham Amuzu Banini who at the time of his death on 30 April 1963 left a will bearing the date 7 July 1961 and probate of which was granted by the High Court, Ho, on 8 January 1965. Under the said will the defendant, also a son, was appointed the “sole executor” and the “sole administrator,” and the plaintiffs allege that they are all beneficiaries under the said will.

The claims against the defendant made by the plaintiffs for themselves and on behalf of the other children of the said Abraham Amuzu Banini are for:

“(a) Account from the defendant as the executor of the will of the late Abraham Amuzu Banini from the date of his death up to date of judgment;

(b) Recovery of the amount found due for the purpose of being shared to the beneficiaries.”

Paragraph (6) of the statement of claim is a catalogue of the names of the twenty surviving children of seven wives of the testator.

In the statement of claim the plaintiffs have made several complaints against the defendant but the cardinal ones on which hinge the others are contained in paragraphs (7) and (8) which provide that:

“(7) Since the death of the testator the defendant took charge of all the property of the deceased, and started to enjoy the same as if the estate was his self acquired property and acquired other properties for himself out of the estate.

(8) The defendant refused to give the beneficiaries under the will their share of the estate and persistently refused to account to the plaintiffs despite repeated demands upon him to do so.”

The defendant’s answer to the averment in paragraph (7) above is a denial and, in answer to the averment in paragraph (8), the defendant says in paragraph (7) of his statement of defence:

“ . . . by the terms and provisions of the said will the defendant is and became the sole administrator, executor and beneficiary of the said estate of the deceased and is not accountable to the plaintiffs or any other person. The defendant further says that

[p.20] of [1973] 1 GLR the said will gave the defendant discretionary rights and powers to help his brothers and sisters if and when any of them made a reasonable request. The defendant says that he had granted such assistance to his brothers John Atsu Banini, Yesusum Banini, Newlove Kofi Banini and many others.”

The properties alleged in paragraph (10) of the statement of claim by the plaintiffs to have been left by the testator are:

“(i) 299 onion beds pledged to the deceased by various pledgors.

(ii) 8 onion beds belonging to the deceased.

(iii) 196 yielding coconut trees.

(iv) Rent from buildings.

(v) Firewood from mangrove at Dzita.

(vi) Deposit in bank account ¢800.00.”

In addition to the above properties the defendant is alleged to have declared at a meeting after the death of the testator that debts owed to the estate by seventeen debtors amounted to ¢2,596.00 and those from unknown sources also amounted to ¢3,730.00.

From the state of the pleadings the matters which have been urged by counsel for the court to deal with as preliminary issues as contained in the additional summons for directions are:

“(b) Whether or not the will should not first be interpreted.

(c) Whether or not the will gave the defendant absolute discretionary powers.”

For this purpose it is necessary to reproduce the provisions of the will:

“(1) I BEQUEATH UNTO my said son FREDERICK MAWUENYEGAH KWAKU BANINI all my estate properties for the benefit of himself and of other surviving children old and young being his brothers and sisters agnate and cognate.

(2) AND I GIVE, DEVISE and BEQUEATH TO my said son FREDERICK MAWUENYEGAH KWAKU BANINI, the sole executor of this my will and the sole administrator of my estate, all my real and personal properties hereinafter mentioned for his benefit and for the benefit of all my surviving children absolutely without any encumbrances whatsoever including all monies I may have in the bank or in my possession prior to my death.

(3) The said executor of this my will who shall be sole administrator of my estate FREDERICK MAWUENYEGAH KWAKU BANINI shall immediately on my death assume and take charge of all my said properties and of all my debtors’ receipts in my possession prior to my death and to demand and collect into my estate from all my such debtors the debts they are owing and due to me by them individually.

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(4) I ENTRUST all my younger surviving children being his brothers and sisters, to and under the constant care, upkeep and support of my said son FREDERICK MAWUENYEGAH KWAKU BANINI, the sole administrator of my estate and to maintain and give those of my children who are tenable requisite elementary education and further to any of them becoming eligible for secondary or higher education if the income of my estate can or may afford any such further enterprise.

(5) He my said son FREDERICK MAWUENYEGAH KWAKU BANINI the sole administrator of my estate, at any time that any of his brothers or sisters may ask for monetary help or otherwise shall give such request his personal or advisory and careful consideration and find it worthwhile before to attend and treat the same favourably.”

The contention of counsel for the plaintiffs in his argument against diately after the recital.)

The contention of counsel for the plaintiffs in his argument against the absolute claim of the defendant to the estate is that the testator made certain stipulations in the will as to who are to benefit from the estate and, according to counsel, these beneficiaries are mentioned in paragraph (6) of the statement of claim as the surviving children of the testator. The questions raised are: (a) whether there is any provision in the will for the plaintiffs and the other children; (b) whether the will, read as a whole, makes provision for the defendant as executor to benefit alone from the estate or whether the will gave the discretion to the defendant to deny all the children or some of them the benefits under the will. His submission on these questions is that on a critical examination of clause (2) the intention is that the right to enjoy the property is given to the defendant and all the brothers and sisters agnate and cognate. Counsel emphasizes in this regard the significance of the conjunctive word “and” after the word “himself.”

To buttress his submission counsel referred also to the stipulation in clause (3) that the real and personal properties mentioned are for the benefit of the defendant and for the benefit of all the surviving children of the testator absolutely without any encumbrances. Other provisions were made for the maintenance and education of the younger children. It is submitted on behalf of the plaintiffs that no right has been given to the defendant to enjoy the benefit exclusively when the intention of the testator is that all his children and not only the defendant should benefit from the estate.

The contention of counsel for the defendant is that the action was brought on behalf of the children only but not the wives. He submits that clause (6) gives discretionary powers to the defendant. To this submission made by counsel for the defendant, the answer by counsel for the plaintiffs is that if by these discretionary powers alluded to by

[p.22] of [1973] 1 GLR counsel for the defendant it is meant that the defendant has the right to the estate absolutely then the acceptance of this interpretation will do violence to the will.

In construing a will, the principle is that the clauses must be read referentially to each other unless they are clearly independent: see Ford v. Ford (1848) 6 Hare 468. Although a person may by his will devise all his real property and bequeath all his personal property to his personal representative (the executor or administrator), the question whether the personal representative takes absolutely or otherwise is determined by some expressions as to the extent of the dispositions or limitation. And every will is construed with reference to the dispositions of the properties and the limitation of the objects mentioned in the will to benefit.

In the present case the question to be determined on construction of the will is: Who are the persons intended by the testator to benefit from the bounty? It is clear from clauses (1) and (2) that the words of limitation show an intention that the gift is made absolutely to a body of persons consisting of the executor (the defendant), his brothers and sisters agnate and cognate who are deemed as a class rather than the executor as an individual: see Pearks v. Moseley (1880) 5 App.Cas. 714 at p. 723, H.L. per Lord Selborne L.C. and Re Gardiner’s. Estate; Garratt v. Weeks (1875) L.R. 20 Eq. 647.

A class gift has been held to mean “a gift to a class consisting of persons who are included and comprehended under some general description and bear a certain relation to the testator.” See Kingsbury v. Walter [1901] A.C. 187 at p. 192, H.L. In such gifts the property devised or bequeathed vests in all the members of the class in existence at the time of the testator’s death as joint tenants. And the principle relating to this type of gift was stated by Lord Macnaghten in the case of Kingsbury v. Walter (supra) in the following words at p. 191:

“When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting body as individuals, and so you can see that he intended that if one or more of that body died in his lifetime the survivors should take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator.”

Since the properties are given to the executor for the benefit of himself and of his surviving brothers and sisters and there are no words of distribution or severance the proper construction is that the testator intended that all the brothers and sisters should enjoy together with the executor as joint tenants but not for the exclusive enjoyment of the executor. Joint tenants take the same quantity of interest. Each donee takes a share equal in amount to the share of each other donee: see Weld v. Bradbury (1715) 2 Vern. 705. Each is also entitled to the benefit of the principle of survivorship.

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By clause (3) of the will, the defendant as the executor and administrator is merely charged with certain duties not excluding the obligation to exercise his discretion in applying the funds of the estate for the benefit of his brothers and sisters also as beneficiaries under the will. The assumption or any construction that he is vested with the estate absolutely to the exclusion of the brothers and sisters subject to the provisions as to the use of his discretion is erroneous and not in harmony with the intention of the testator.

Clause (4) merely commits the younger brothers and sisters to the care of the defendant as executor in charge of the administrator of the estate to maintain and provide the requisite education for them from the elementary up to a higher school as far as the income of the estate can meet.

Clause (5) also directs the defendant not to deny his brothers and sisters any assistance financial or otherwise subject to his careful consideration as to the reasonableness of the demand. The true construction which I can attribute to this provision is that in the absence of any distinct gifts the intention of the testator is that so much of what may be due to each of the brothers and sisters may be given for the purposes for which the assistance is required. Any other construction that the testator by that provision intended the executor (the defendant) to have the estate absolutely will be inconsistent with and destroy the effect of the words “for his benefit and for the benefit of all my surviving children absolutely without any encumbrances whatsoever,” in clause (2) which is clear that the testator intended that all his children should enjoy together his bounty without any claim by anyone on the property. These words restrict the enjoyment of the defendant as an individual member of the class but do not vest in him the absolute interest to the exclusion of the other brothers and sisters. On perusal of the will as a whole I do not find any words indicating that the gift was meant for the defendant absolutely for his exclusive benefit.

Clauses (6) and (7) which contain provisions for the surviving wives of the testator read as follows:

“MY WIVES: My said son FREDERICK MAWUENYEGAH KWAKU BANINI, the sole administrator of my estate shall preserve and follow up my policy for the maintenance of all my wives, that is to say: On plucking, by him, from time to time all my coconut trees, he shall sell to each of my wives a share of the coconuts and collect the purchase money from each individual into the estate.

All my wives should be given the continuity of the liberty and privilege to live in my house as hitherto until death provided they do not marry any other man but any of them is at liberty to marry and in which case the privilege and consideration as being my wife shall cease and she who remarries shall in that wise leave my ‘Harem’ to go to her new husband.”

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Except the above provision made for the wives, there is no distinct gift or legacy which can be applied not only for the maintenance and education of the younger brothers and sisters but also for the assistance financial or otherwise as directed in clauses (4) and (5). The properties were entrusted to the defendant in his capacity as the sole executor and administrator for the purpose of administration including the purposes directed. Any attempt by the defendant to claim the estate absolutely will amount to a clog on the vesting of the interest of the other brothers and sisters in the estate and leave them nothing more than a mere hope that the defendant’s discretion will always be exercised in their favour. This provision as to the discretion if so construed as to vest the estate in the defendant absolutely, then that interpretation will operate as an implied revocation of the share due to each of the brothers and sisters. It will be inconsistent with the testator’s intention since the provisions in clauses (1) and (2) strongly negative any intention to grant the gift to the defendant absolutely. This clause (5) tends to make the adult brothers and sisters subservient, who must, at any time when in need, crouch on their knees for the exercise of the defendant’s discretion in their favour. This discretion is not only as to the quantum but also as to the choice of the brother or sister to be considered and there is no guarantee that the defendant, in the circumstances, as the sole executor and administrator can be impartial in the exercise of his discretion to confer an advantage on certain of the brothers and sisters to the disadvantage of the others.

In my view, the provision in clause (5) tends to take away or cut down the vested interest of the brothers and sisters who are sui juris because those words are not decisive as regards their interest in and the share of each in the estate as the words in clauses (1) and (2) referred to by counsel for the plaintiff as clauses (2) and (3) which give the estate to the defendant and his brothers and sisters absolutely for their joint benefit.

On a true construction of the clauses in the will as a whole I find that the testator’s intention was to make a gift to all his surviving children but not to the defendant absolutely. The provisions in clauses (4) and (5) are mere directions as to the mode of application of the interest of the brothers and sisters in the estate: see Watson v. Hayes (1839) 5 My. & Cr. 125 at p. 133 per Lord Cottenham L.C. But the provision in clause (5) must be disregarded as taking away the vested interest of those brothers and sisters and therefore not being in harmony with the intention of the testator expressed in clauses (1) and (2) the effect of which is that all his children must take the gift as joint tenants.

I have construed clauses (4) and (5) in the light of the following principle expressed in the case of Langston v. Langston (1834) Bli. (N.S) 167 as summarised in Vol. 48 English & Empire Digest 408, 3570 (3): “A construction which tends to preserve all parts of the will is to be preferred to that which destroys it, especially when the liberal construction accords with the probable intention of

[p.25] of [1973] 1 GLR testator.” And in so construing them I have considered the following presumptions: (a) In the case of a gift by a will “there is no supposition that any person can be intended to take, except those who are described as takers.” See Tucker v. Harris (1832) 5 Sim. 538 as summarised in Vol. 48 English & Empire Digest 433, 3805. (b) “A father must be presumed to make such provisions as will answer the purpose of children, and their advancement in the world, and the will ought to be so construed as to carry out the intention of the parent into execution.” See Mendes v. Mendes (1747) 3 Atk. 619.

I am satisfied, on a true construction of the clauses (1) and (2) with reference to the other subsequent clauses, particularly clause (3), that the testator was not looking to the defendant as an individual but at the body of his children as a whole who must take as joint tenants. The discretion was given to the defendant but that did not mean that the property was a gift to the defendant absolutely.

Costs for the plaintiffs in the cause.

DECISION

Judgment for the plaintiffs.

S. O.