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BROWN v. DARKO AND ANOTHER


  • New
  • 1961-09-22
  • HIGH COURT
  • GLR 539-543
  • Print

OLLENNU, J.


Summary

Probate and administration?-Whether executors obliged to execute a conveyance, in favour of a devisee?-Whether the Administration of Estates Act, 1961 (Act 63) has retrospective effect.Probate and administration?-Person claiming a bequest under a will must prove that the specific legacy existed at date of death of testator.

Headnotes

The will of Joseph Quao Arthur, dated the 31st July, 1951 and appointing the two defendants as executors, devised to the plaintiff "all that piece or parcel of land situate lying and being at Christiansborg-Labadi Road measuring 100 feet by 62 feet". In addition the will contained the following clause:"I direct that after my demise all trinkets that I may die possessed of should be sold and out of the proceeds the sum of Ten Pounds (G10) be given to Mercy Cromwell (Wesi Crentsil Arthur's mother) and my wives Elizabeth Sai and Adoley Brown to receive Fifty pounds (G50) each . . ."The said Joseph Quao Arthur died in 1951. The plaintiff sued the defendant in 1961 for an order that defendants execute a deed conveying to her the plot devised under the will, and also for the payment to her of the G50 pecuniary legacy.

Judgement

ACTION by a beneficiary under a will requesting the executors to convey land and to pay a pecuniary legacy. The executors counterclaimed for G485 alleged to be due to the estate from the plaintiff. The counterclaim was dismissed for insufficient proof. This report is limited to the plaintiff 's action alone.

The plaintiff is a beneficiary under the will of the late Joseph Quao Arthur. The defendants are the executors named under the said will of which exhibit A is a copy of the probate. By her writ, the plaintiff claims two reliefs namely: (1) an order upon the defendants to execute a deed conveying to her a plot of land devised to her under the said will; and (2) an order for the payment of the sum of G50 bequeathed to her under the said will.

Apart from pleading the devise and bequest, all the facts pleaded by the plaintiff in her four paragraphed statement of claim are contained in paragraph 3 of her said statement of claim which is as follows: "3. Since November, 1955 and despite requests the defendants have failed and still fail to convey the said land to the plaintiff and to pay to her the bequest of G50".

The defence to the claim is that: (1) the land devised under the will cannot be identified and therefore no conveyance of it could be executed [p.541] in favour of the plaintiff, and (2) in any event the defendants as executors under the will of the testator are not under a legal obligation to execute a conveyance in favour of a devisee in respect of land devised to her.

The defendants counterclaimed for an amount of G485, due to the estate as value of trinkets which they alleged were given to the plaintiff by the testator for sale. The defence filed to that counterclaim is as follows: "7. In further reply to paragraph 6, plaintiff avers that she does not owe the testator the alleged sum of G485 being value of trinkets sold by her on the testator's behalf as averred or in any part of that sum or at all".

For a plaintiff to succeed on a claim for an order upon a defendant to execute a deed of conveyance of land to him, he must: (1) satisfy the court that the defendant is under a legal liability to execute the said deed for him, (2) identify the land to the court with specific particularity, and (3) prove to the court that he had tendered the necessary documents to the defendant for execution and that the defendant had refused to execute the same.

It was submitted on behalf of the plaintiff that as executors, the defendants are under a legal duty to assent to or execute a deed conveying to the plaintiff, a devisee under the will, the plot of land devised to her under the will. In support of that proposition of law, counsel cited the case of Attenborough v. Solomon1 a case which appears to have been based upon sections1 (1), 2 (1) and 3 (1) of the Land Transfer Act, 18972. By section 2 (1) of that Act, a beneficiary entitled to real estate under a will, has the same power of requiring the transfer of the real estate devised to him as a person beneficially entitled to personal estate has of requiring a transfer of such personal estate to him. And subsection (2) of that section (as amended by section 12 of the Conveyancing Act, 19113) provides that all enactments and rules of law concerning matters relating to the administration of personal estates, and powers, rights, duties and liabilities of personal representatives in respect of personal estate, apply also to real estate so far as the same is applicable, as if the real estate were a chattel real vesting in the personal representatives; and section 3 (1) of the Act provides that at any time after the death of an owner of land, his personal representatives may assent to any devise contained in his will or may convey the land to any person entitled thereto as heir, devisee or otherwise.

But neither the said Land Transfer Act, 18974, nor the Conveyancing Act, 19115 applies to Ghana they not being statutes of general application in force in England on July 24, 1874. Under the Wills Act 18376 which is the statute applicable to Ghana, real estate does not vest in personal [p.542] representatives and so they have no power to assent to its vesting in a beneficiary, or to convey it to such person. See judgment of this court in Hammond v. Lamptey7.

It must be pointed out that the relevant provisions of the Land Transfer Act, as amended by the Conveyancing Act, 1911, have now been enacted in our Administration of Estates Act, 1961,8 which provides as follows:

"Section 1 (1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death."

"Section 2 (1) The personal representatives shall be the representatives of the deceased in regard to his movable and immovable property,. . ."

"Section 96(1) A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appointment or otherwise) may be entitled thereto. . ."

This Act however received the President's assent only on the 7th June, 1961, and there is no provision in it that it should have retrospective effect, therefore it cannot apply to this case.

I hold therefore that the defendants are not under any legal obligation to convey any land to the plaintiff.

As to the identity of the land, all the description given of the said land is as follows: "The land is all that piece or parcel of land situate lying and being at Christiansborg?-Labadi Road measuring 100 feet by 62 feet". No person can identify land of that description, and no court of law will make any order in respect of land of that description as it will be impossible to enforce that order, and that order would be in vain.

But even if I am wrong on the question of the liability of the executors and the identity of the land, the evidence tendered by the plaintiff, including the document exhibit 1 shows conclusively that all that the defendants were requested by the plaintiff to do in connection with the document exhibit 1 is, to witness its execution by one Elizabeth Oboshie Sai therein described as "the donor". The following question which counsel for the plaintiff put to the first defendant in cross-examination and the answer the first defendant gave to it, made that issue quite bare. The said question and answer are as follows:

"Q. I put it to you that when Mr. Lokko, P.W.1 and the plaintiff brought to you a document, exhibit B, to sign as witness to its execution, you refused to do so.

A. Yes, that is true".

In the first place the plaintiff's writ of summons does not make any such claim. In the second place in so far as that appears to be the real dispute between the parties which the court is called upon to adjudicate, it must be observed that since the donor has not executed the document, the question of attestation of its execution cannot arise. And in the third place, I know of no law and no authority has been cited to me upon [p.543] which a particular person or persons could be compelled to attest the execution of a document if he or they are unwilling to be attesting witnesses to its execution. The plaintiff's first claim must therefore fail.

Now the clause in the will upon which the plaintiff bases her claim to the pecuniary legacy of G50 reads as follows:

"I direct that after my demise all trinkets that I may die possessed of should be sold and out of the proceeds the sum of Ten pounds (G10) be given to Mercy Cromwell (Wesi Crentsil Arthur's mother) and my wives Elizabeth Sai and Adoley Brown to receive Fifty pounds (G50) each?-,"

A bequest of this nature is either a specific legacy of the trinkets of which the testator may die possessed, or a demonstrative legacy to be paid out of a named fund, i.e. the proceeds of the sale of the said trinkets. In so far as it is specific legacy, the plaintiff must prove the existence, in specie, of the trinkets at date of the death of the testator, otherwise the legacy will in law be considered revoked by ademption. And in so far as it is a demonstrative legacy the plaintiff must prove that upon the failure of the particular fund out of which it could be paid, there are sufficient funds in the general estate out of which the whole legacy or a rateable portion of it could be paid. See Williams on Executors and Administrators, (11th ed.) pages 917 and 1061-2, and Halsbury's Laws of England (1st ed.) Vol. 14, p. 277, paras. 640 and 641.

And what is the evidence in support of this claim to legacy? All that the plaintiff said is that the legacy of G50 has not been paid to her even though she had demanded it; and further that she did not know of any trinkets which have been sold out of the proceeds of which the legacy could be paid to her. Her witness Mr. Lokko, P.W.1 said that some trinkets were discovered in a drawer in the room of Madam Elizabeth Sai, one of the two wives of the testator, that the drawer was locked up by the executors and the key thereof given to Mr. Muffatt, D.W. 1, a member of the family; but that later on the said Madam Elizabeth Sai told him that those trinkets were lost, and he in turn told the executors of the said loss. The alleged inventory was not produced, and no notice to produce it was served on the defendants. What is worse, when the said Mr. Muffatt gave evidence, not one question was put to him in cross-examination about those alleged trinkets and the alleged inventory. There is also the complete absence of evidence as to the state of the general estate, whether solvent or insolvent.

I reject the evidence of Mr. Lokko, P.W.1, that some trinkets were discovered other than the one pair of broken earrings which the first defendant admitted was found. Since the onus is upon the plaintiff to prove the existence of the trinkets in specie and the sale thereof, or of a sufficient general estate out of which the said legacy could be paid, and she has failed completely to discharge that onus, her second claim too must fail. [His lordship then considered the counterclaim and dismissed that also for insufficient proof].

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

J. C. Armah

Defendant / Respondent

J. Quashie-Idun

Referals

(1) Attenborough v. Solomon [1913] A.C. 76, H.L.

(2) Hammond v. Lamptey, High Court, Accra, May 10, 1961, unreported.

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