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Adebeshin Folarin & Ors V. Samuel Olawole Williams & Ors (1942) LJR-WACA

Adebeshin Folarin & Ors V. Samuel Olawole Williams & Ors (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Will—Construction of clause—Bequest—Whether gift absoluteor life interest—Bequest followed by contingent gift over.

Held : Clause construed as an absolute gift, and gift over void for repugnancy.

Cases referred to :=

  1. Willats, Willats v. Artley (1905) 1 Ch. 378.
  2. Comiskey v. Bowring-Hanbury, 1905 A.C. 84.
  3. In re Estate of James Lupton 1905 P.D. 321.
  4. In re Jones Richards v. Jones (1898 1 Ch. 438). J. 1. C. Taylor for Appellant.

E. 0. Moore for Respondents.

P. Oddie for 2nd Defendant—Rhoda 0. Williams. • 3rd Defendaut—Babatunde

4th Defendant—Koloworola Williams.

5th Defendant—Kolade

L. Odunsi (holding 0. Moore’s brief) for 1st Defendant. Samuel Williams (not appealing).

PETRIDES C.J., GOLD COAST, GRAHAM PAUL, SIERRA LEONE AND KINGDON, C.J., NIGERIA, concurring.

PETRIDES, C.J., GOLD COAST:—

This is an appeal from the decision of Butler Lloyd, J., on an originating salmons for the construction of a clause in the Will of Nathaniel Fehintola Williams. The clause the construction of which is sought reads :—

” I devise, give and bequeath all my Estate real and personal not ” hereby otherwise disposed of unto my Trustees upon trust for use ” and enjoyment of my said daughter Queen Ibironke absolutely. In ” the event of my said daughter dying unmarried or dying without ” issue legitimate or natural, I direct that all my property real and ” personal more particularly real, which may still remain in her ” possession should revert to my Estate and distributed among my ” children begotten by Jironi.

” I direct that all my Residuary Estate real and personal not ” mentioned in this my Will be disposed of by my Trustees for the benefit ” of all my children legitimate and natural According to the discretion ” of my said Trustees.”

The grounds of appeal are :—

” The learned Judge is wrong in holding

” (u) that the devise to Trustees upon trust for the use and ” enjoyment of my daughter Queen Ibironke confers upon her a ” life estate only notwithstanding the use of the word absolutely.

” (b) that the argument that the subsequent gift over in the ” events of her dying unmarried or childless is void for repugnancy ” would only be sound had the preceding gift been prima facie ” absolute, for instance had the words for use and enjoyment’ ” been omitted before absolutely.’ “

The learned Judge held in effect that the clause conferred upon Queen Ibironke a life estate only and that in consequence the subsequent gift over in the event of her dying unmarried or childless was valid.

Some of the words that have to be construed in this case bear a striking similarity to words used in the Will that was partly construed in the ease of 117illats, 11,illots v. drtley (1905) 1 Ch. 378. In that case the Court of Appeal said the construction of the Will was purely one of the intention of time testator to be gathered from the words of a very special and obscure Will, and there was really no law applicable to its construction.

It seems to me that exactly the same thing may be said of the provision that this Court has been asked to construe.

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In the course of argument the House of Lords decision in Comiskey v. Bowriny-Haabury, 1905 A.C. 84 has been referred to. The decision in that case is not of much assistance to the construction of the clause in the Will in this case. That decision

turned on the actual words used and there was a great divergence of opinion among the Judges who gave judgments in the three Courts by which the Will was construed.

There is one very material difference between the facts in Comiskey v. flouring-Hanbury and the present one. In the former case the Court held that the testator did not intend at his widow should have an absolute power of disposition in her lifetime whereas in the present case I think the testator did intend that she should have such power.

The testator obviously intended that the residue should go to his trustees and they should hand it over to Queen Ibironke. I don’t think it can be doubted that he intended that the latter should have power to dispose of the residue for he makes provision that the property that might still remain in her possession if she died either unmarried or without issue, legitimate or natural, was to revert to his Estate and be distributed among the children begotten by Jironi. The Will is silent as to what is to happen to the residue if she died married or leaving children. I do not think however that it can be doubted that the testator intended that, in that event, she should be entitled to dispose of it by Will or if she made no Will it should go to her heirs.

It will thus be seen that I have come to the conclusion that the testator intended to give Queen Ibironke full power of enjoyment and disposal of the residue in her lifetime and, in certain circumstances, to leave by Will any of the residue that might remain in her possession at her death.

In my opinion there was an absolute gift to Queen Ibironke of the residue and in consequence the gift over to the children begotten by Jironi is void for repugnancy.

For these reasons I ant of opinion that the appeal should be allowed.

GRAHAM PAUL, C.J., SIERRA LEONE :—

The question in this appeal is the meaning and effect of the following provision occurring in the Will of the late Nathaniel Fehintola Williams :—

” I devise, give and bequeath all my Estate real and personal NC! ” hereby otherwise disposed of unto my Trustees upon trust for us,

and enjoyment of my said daughter Queen Ibironke absolutely. I: ” the event of my said daughter dying unmarried or dying withou; ” issue legitimate or natural, I direct that all my property real an ” personal more particularly real which may still remain in he:- ” possession should revert to my Estate and distributed among ” children begotten by Jironi.”

There appear to be three possible meanings of this clause : —

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(1) That Queen Ibironke obtains only a life interest .

the property in question and in the event of her dyit_.:

unmarried or without issue, legitimate or natural, as

the property in question goes to the testator’s children begotten by Jironi.

  1. That Queen Ibironke took the property in question as an absolute gift on the testator’s death, the gift-over to the children of the testator by Jironi being void for repugnancy and
  2. That Queen. Ibironke was given a life interest with a right to use the capital of the property in question to any extent she might wish during her life, only the balance if any remaining ” in her possesion ” at her death being affected by the gift-over.

The learned Judge has decided, and the Respondents contend, in favour of the first of these interpretations and the appellant’s Counsel arglies that it is the second of these interpretations which is correct.

Looking at the actual wording of the clause unfettered by any of the decided cases or by technical rules of construction which may be evolved from the authorities I think it is perfectly clear that the testator visualised and intended three things :

(a) That his daughter Queen Ibironke should have the use and

enjoyment absolutely of all the property real and personal

not otherwise disposed of by his Will.

(h) That by reason of that ” use and enjoyment by his daughter there might or might not ” still remain ” in her possession ” at her death some of that property and

(c) That in the event of his daughter not having ” used and enjoyed ” all the property devised, whatever remained ” in her possession should on her death revert to his estate to be distributed among his children by Jironi.

It seems to me that (b) involves that the testator intended that his daughter Queen Ibironke could if she liked dispose of the whole or any part of the capital of the property in her lifetime, which of course is quite inconsistent with an intention that she should have only a life interest.

Further I consider that (e) is in its actual language inconsistent with the idea that an absolute gift to Queen Ibironke was intended for in that event of course it would be necessary to strike out of the Will as repugnant the provision of the gift-over to the children by Jironi.

In other words my view is that as a matter of interpreting plain English the first and second of the alternative interpretations 1 have suggested are inconsistent with the intentions of the testator as shown in (a) (b) and (c). The third alternative on the other hand is perfectly consistent and consonant with (a) (b) and (c) and involves no necessity of striking out as pro non scripta any part of the Will. Courts very rightly prefer an interpretation of a

Will which will give effect to every word of the Will to an interpretation which necessitates in effect alteration of the Will’s express terms.

That is the result at which 1 have arrived by consideration of nothing but the plain meaning of the English used in the Will and I have been unable to find in the authorities quoted to us any rule which prevents this Court from accepting what I may call the ” plain English ” of this

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The only cases quoted to us were

In re Estate of James Lupton 19O P.D. 321 and Comiskey r. Bewring-Hanbnry 1905 A.C. 84.

In neither of these cases were there present the three definite pointers to the testator’s intention which I have designated (a) (b) and (c).

The eases quoted to us were not however exhaustive and 1 have found it necessary to examine other authorities including the case of In re Jones Richards -r. Jones (1898 1 Ch. 438) which in my opinion governs the present case. In that case property was given to the testator’s wife ” for her absolute use and benefit so that ” during her lifetime for the purpose of her maintenance and ” support she shall have the fullest power to sell and dispose of ” my said estate absolutely.” This was followed by a gift-over on the wife’s death of such parts of the estate as she had not disposed of. At her death a considerable part of the estate remain ‘indisposed of. In that case I consider that the three elements (a) (b) and (c) were present but the Court held in that case that there was an absolute gift to the wife defeating the gift-over as repugnant.

It seems to me that the present case is governed by that decision, and that the devise in question is an absolute gift to Queen Ibironke, the gift-over being void for repugnancy. It follows that in my view the appeal should be allowed and the judgment of the Court below varied in favour of the opinion I have expressed. KINGDON, C.j., NIGERIA :—

I concur with the judgment which has just been delivered by my learned brother the Chief Justice, Sierra Leone.

ORDER

The appeal is allowed and it is ordered that the judgment of the Court below be varied by substituting for the answer given to question 3 in that judgment the following answer :—

The clause in the Will

” I devise, give and bequeath all my Estate real and personal no

” hereby otherwise disposed of unto my Trustees upon trust for ” and enjoyment of my said daughter Queen Ibironke absolutely.

” the event of my said daughter dying unmarried or dying without ” issue legitimate or natural, I direct that all my property real and

personal more particularly real which may will remain is her shoulder to my Estate and dutributed among childem legato must be construed as an slowdute gift to Queen Ihiruake and the lawle giftover is void for repugnancy.


The appellant is awarded costs in this Court assessed at Twenty-ve guineas and respondents coats same at fifteen guineas. All to be paid out of the state.

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