Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 IN RE BUXTON DECEASED BUXTON v. APPIAH AND ANOTHER | GhanaLegal - Resources for the legal brains

IN RE BUXTON DECEASED BUXTON v. APPIAH AND ANOTHER


  • New
  • 1961-10-25
  • HIGH COURT
  • GLR 601-604
  • Print

OLLENNU, J.


Summary

Wills?-Construction?-Latent ambiguities.

Headnotes

Clauses 11 and 12 of the will of David William Buxton, deceased read as follows:?"11 Mr. Nelson must collect an outstanding debt. This I give to my [p.602] second wife Namoale Sackey, Mr. Nelson has the receipts.12 There are outstanding debts to be collected the receipts of which are with me, these must be collected by my son James Ashiefie Buxton for his own use".On the death of D. W. Buxton, two bundles of documents were found among his personal effects. One bundle contained receipts and promissory notes written by Mr. Nelson but signed by the respective debtors. A list only of these debtors was in the possession of Mr. Nelson; he did not have a single receipt or promissory note. The other bundle contained receipts and other acknowledgments of indebtedness written and signed by the several debtors themselves. The plaintiff, the beneficiary under clause 12 of the will, brought this action by originating summons against the executors of the will and asked the court to interprete clause 12 to include all debts in respect of which any document receipt, promissory note, or acknowledgment ?- was found among the testator's personalty, i.e. all debts covered by the two bundles of receipts.

Judgement

RULING on an application by originating summons for the interpretation of a clause in a will.

In this originating summons, the court is called upon to interprete clause 12 of the will of the late David William Buxton, deceased who died on the 10th June, 1959. The will is dated the 3rd June, 1959, and probate thereof was granted on the 15th August, 1959, to the defendants herein, the executors named in the said will. The said clause 12 of the will reads as follows:

?"12 There are outstanding debts to be collected the receipts of which are with me, these must all be collected by my son James Ashiefie Buxton for his own use?".

The interpretation which the court is invited to place upon the words "outstanding debts to be collected the receipts of which are with me" is: all debts whatsoever due on any receipts or promissory notes which were found among the testator's personal effects after his death.

It was submitted on behalf of the plaintiff that these words used by the testator are clear and unambiguous on their face and must therefore be given their ordinary meaning, and be construed as required by the [p.603] plaintiff. The court was referred to Odgers on Construction of Deeds and Statutes, (3rd ed.), pages 29 and 56 as laying down this principle. At page 29 the principle is stated as follows:

"The plain ordinary meaning of the words used is to be adopted in construing a document. The subject matter may show, however, that the words have a meaning different from the plain, ordinary or popular meaning, if they are used in connection with usage of a trade or profession and have thus some special, technical meaning. They may even be used in a special or peculiar sense on a particular occasion if this construction would effect the intention of the parties as collected from the document. Also if the plain, ordinary meaning of the words would lead to some absurdity or inconsistency with other expressions in the document, this plain, ordinary meaning may be modified in order to avoid the absurdity or render the different parts of the document consistent".

Again words which on their face, standing alone by themselves, are plain and unambiguous, may become ambiguous or absurd when read together with other parts of the document, or when considered along with surrounding circumstances. In such a case there is a latent ambiguity and the words used should not be interpreted in their pure literal meaning. At page 59 of Odgers on Construction of Deeds and Statutes, the learned author said:

?"In a latent ambiguity or equivocation the difficulty is not discovered till evidence as to the literal meaning of the words used and as to the circumstances of the parties at the time the document was executed, in fact all the evidence admissible to resolve a patent ambiguity, is exhausted. The ambiguity still remains.?"

Now this originating summons has had to be taken because of difficulties which have arisen when the said clause 12 of the will is read along with clause 11 thereof, and receipts and promissory notes discovered among the personal effects of the testator, and other facts and circumstances existing at the time the testator executed his said will. The said clause 11 of the will is as follows:

?"11. Mr. Nelson must collect an outstanding debt. This I give to my second wife Namoale Sackey, Mr. Nelson has the receipts".

Now the receipts and promissory notes found among the testator's personal effects are in two batches; in one batch, all the notes are in the handwriting of the said Mr. Nelson, signed by the respective debtors to the deceased, in the other the notes are in the handwriting of different persons and signed by the debtors. On some of the notes in the first batch, there are endorsements made by Mr. Nelson showing instalment payments collected from the respective debtors.

Again Mr. Nelson has never had any receipts or promissory notes of the testator in his possession but he had and still has a list of all the names on the promissory notes and receipts contained in the one batch of the receipts with the respective amounts. Moreover during the life-time of the testator, Mr. Nelson used to collect moneys from the debtors whose list he has and pay to the testator on account of the debtors; instalments he paid on account were endorsed on the promissory notes or receipts of the appropriate debtors, and upon full payment of the amount due on a [p.604] particular note, the testator gave the note to Mr. Nelson and he returned the same to the debtor who had made the note.

Since Nelson has no receipts of the testator in his possession and never has had any, a literal interpretation of the words "Mr. Nelson has the receipts" will lead to absurdity. Again when clause 12 is read along with clause 11 in the light of all the circumstances, the words "the receipts of which arc with me" appearing in the said clause 12 show a latent ambiguity.

In such a case it is necessary to take extrinsic evidence, not of the testator's intention, but evidence to enable the court to interprete the language the testator used; see Odgers, Construction of Deeds and Statutes, (3rd ed.), page 35; at page 37, the learned author, stating the circumstances in which extrinsic evidence may be taken for the purpose of interpreting words, among other things, said:

"Just as evidence is under certain circumstances admitted to identify the words used, so evidence may be given to identify the persons and objects to which the expressions used in the instrument were applied. The instruments must be construed with reference to the facts, and in order to determine what passes by it and who takes an interest under it evidence is admitted of 'every material fact which will enable the court to identify the person or thing mentioned in the instrument and to place the court, whose province it is to declare the meaning of the words of the instrument, as nearly, as may be in the position of the parties to it.' So in the case of wills, it is commonly said to be the duty of the court to put itself as far as possible 'in the testator's armchair'."

It is therefore in a situation as nearly as possible as that in which the testator was and in the circumstances surrounding him that the court must place itself in order to ascertain the meaning of the words in question. In that situation I find that Mr. Nelson had no receipts in his possession at the date of the execution of the will, but he had something in his possession relating to receipts, i.e. a list of the debtors and the amounts they owed as shown on the receipts. The receipts signed by the people on that list were in one bundle or batch, and each of them is in the handwriting of Mr. Nelson. It therefore follows, that the only thing which the testator meant by the words "Mr. Nelson has the receipts" which are used in clause 11 of his will, is Mr. Nelson has the list of the debtors who signed those "receipts", and the only reasonable interpretation to be placed on the words "the receipts of which are with me" which can give it meaning in order to remove the latent ambiguity is an interpretation which excludes the bundle of receipts, the list of the makers of which was and now is in the possession of Mr. Nelson.

I hold therefore that the words "the receipts" appearing in clause 11 of the will mean the batch or bundle of receipts in the handwriting of Mr. Nelson and a list of the makers of which is in the possession of Mr. Nelson; and "the receipts" appearing in clause 12 of the will mean the receipts in the other batch or bundle which was found among the testator's personal effects. The defendants will have their costs fixed at G5.

Decision

<P>Ruling in defendant's favour.</P>

Plaintiff / Appellant

S. M. Codjoe

Defendant / Respondent

Defendants in person.

Referals

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/16ca529b9544aff010b5759a124fbd77): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48