Bankole V Williams & Anor (1965)
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This appeal is from the judgment given by Lambo J. on the will of the late Jacob Olumide Williams who died on the 7th June, 1962. The testator had a son born to him of a wife to whom he was married under the Marriage Ordinance, and also had four children born to him of a mistress. The lawful son was grown up and educated as a doctor, the other children were growing up and being educated, and his will shows anxiety on his part to provide for their maintenance and education. It begins by appointing certain executors and trustees and it goes on to say this:
“I charge my Executors and Trustees that they shall immediately after my death create a Trust Fund from the rents and profits accruing from all my properties and from whatever moneys I may die possessed of in any Bank in Nigeria or elsewhere and pay same into the Bank of British West Africa for a period of ten years, during which at least one quarter thereof should not be touched whilst three quarters should be used for the education and maintenance of my children who are minors or whose education may not have been completed at the time of my death and for other necessary and just expenses.”
After charging his trustees to see that things were not stolen from Raymond House, the testator gives each one of them £25 on his accepting the appointment, and then goes on to provide as follows:
“I leave and bequeath to my son Abraham Jose Williams my dwelling house known as Raymond House absolutely provided that he does not marry a foreigner, in which case he should only enjoy it for life and after his death the said property should revert to my estate. Subject to the conditions and trust which I have stated above 1 give and devise my freehold house known as Samaritan House No 95 Broad Street aforesaid and the premises No 2 Martins Street Lagos aforesaid now in the occupation of the Socony Vacuum Oil Company (Nigeria) Ltd. together with the appurtenances thereto belonging to my children (1) Isaac Babatunde Williams (2) Jacob Olumuyiwa Taiwo Williams (3) Olumilade Idowu Williams and (4) Moradewun Olajumoke Alaba Williams for life and after the death of each of them to his or her or their children for life and to enjoy in equal shares the rents and profits accruing therefrom. I direct that my Trustees shall complete the education of my said children both locally and abroad for a profession for which each has a bent of mind and subject to the approval and discretion of my Trustees.”
Thereafter the testator goes on to make some small money presents, to devise his other landed property (mainly to his mistress and the children by her), to bequeath his jewellery etc. and finally to leave what he did not dispose of to be shared among his children, both legitimate and illegitimate; and he enjoins everybody not to dispute any provision In the will.
The first question is on the meaning of the disposition of Raymond House to the lawful son, Abraham Jose Williams. He married in 1958 a lady called Gladys Wusu, and the question he put to the Court was whether he thereby satisfied the condition subsequent in partial restraint of marriage imposed by the will, and whether in consequence of his marriage he was entitled to obtain from the personal representatives of the deceased an assent vesting him with the immediate absolute fee simple Interest in Raymond House.
The judgement under appeal does not express any view on the validity of the partial restraint on marriage imposed by the testator; the learned judge does not think that the question whether it is void is for consideration at this stage, but later on in his judgement he says that the restraint is inapplicable in the case of the doctor because he has not married a foreigner but a Nigerian citizen. Then he goes on to say “the only condition precedent to the vesting of the property would therefore appear to have been satisfied.” At the hearing of the appeal, Mr Impey for the personal representatives, now the appellants, argued that the condition was in the nature of a condition subsequent; and with that view Chief Rotimi Williams, for the respondent agreed. The question, is whether this condition subsequent in partial restraint of marriage was valid or void for uncertainty. It would seem that the word ‘foreigner’ in the will was understood by the judge to mean a person who was not a Nigerian citizen; and Mr Impey argued at first that that was the meaning Intended by the testator. There might be citizens of Nigeria who are not born of Nigerian parents but of parents from elsewhere, whom the ordinary man in the street would call foreigners, meaning persons who are not indigenous natives of Nigeria; there might be citizens who belong by origin to the Lebanon, Syria, Greece, Morocco or any other place.
On the other hand there are in Nigeria persons who by origin belong to Sierra leone and have come to settle here – the testator himself was, as we understood at the hearing a Sierra Leonean by origin – and it is hard to believe that he would have intended to exclude a bride whose parents were Sierra Leonean but not citizens of Nigeria – the sort of people that in strict technical law might be called native foreigners in the sense that they did not belong to Nigeria by origin but belonged to some territory along the West African coast. The sort of difficulty which arises from a provision like that is well illustrated by the case of Clayton v. Ramsden (1943) Appeal Cases 320; there the testator gave a legacy to an unmarried daughter but provided that ff she should at any time after his death marry a person “not of Jewish parentage and of the Jewish faith”, the disposition in her favour and in favour of her Issue should cease, and that his will should operate as if she had died at the date of the marriage. After his death the daughter married a man who was not of jewish parentage or faith; it was held that the condition of forfeiture was void for uncertainty. The judgments cite the rule stated by Lord Cranworth in Clavering v. Ellison 7 H.LC. 707. 725 that
“Where a vested estate is to be defeated by a condition on contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the proceeding vested estate was to determine.”
We thought at the hearing,in the light of Clayton v. Ramsden, that the condition in the will in hand – “provided that he does not marry a foreigner” – was void for uncertainty. That however does not dispose of the question completely: we still have to consider whether the doctor takes Raymond House free from any liability to the trust fund created for the education of the illegitimate children.
We think that the words in the charge to the executors and trustees, in the passage first quoted in this judgement, to create a trust fund “from the rents and profits accruing from all my properties and from whatever moneys I may die possessed of in any Bank’, contemplate those properties which were at the time of the testator’s death producing rents and profits. In other words the testator was not asking the trustees to let all his properties for the sake of the trust fund, but only asking them to use the rents and profits that were coming in from properties which he had been using as sources of rent. That has an important bearing on the question whether the doctor is entitled to obtain from the personal representatives of the deceased an assent vesting him with the immediate absolute fee simple interest in Raymond House.
We note first that Raymond House is, in the language of rating, made up of two tenements – a dwelling part from which no rent was derived, and a shop let to someone at £60 a year, and it would only be rent from the shop that could be claimed for the trust fund.
We also note that the Samaritan House in Broad Street yields a rent of £12 per quarter, and that No. 2 Martins Street yields £1,500 a year. These two are left to the four children by the mistress’9or life and after the death of each of them to his or her or their children for life and to enjoy In equal shares the rents and profits accruing therefrom”, the gift is introduced with the words “Subject to the conditions and trust which I have stated above”, viz. the ten years trust fund created for the upbringing of those children.
It has been argued for the respondent (the doctor) that the testator meant only those two items of property to be devoted to the trust fund, or else why did he preface only those two items with the words “Subject to” etc.? We do not think that this is sufficient reason for saying that the rent from the shop-part of Raymond House is excluded from the trust fund: for this fund is at the forefront of the will as the paramount general direction and the fund is to be fed from the moneys left by the testator at his death and from the rents and profits accruing from all his properties; and unless there is something in any specific disposition which is in plain conflict with that paramount direction, any disposition which falls within it should be read as being subject to that direction.
There is nothing in the gift of Raymond House to exclude the rent derived from the shop-part, and in our view the trust fund is entitled to the rent. And If we must answer the question why it was that the testator expressly mentioned the trust fund before the gift of the two items in Broad Street and Martins Street, the answer is this: he wanted to prevent any child claiming upon the completion of his education that he was entitled to begin taking his share In the rents accruing from those two items before the ten years had lapsed.
The personal representatives have argued that vesting Raymond House in the doctor should be delayed for ten years; their learned counsel suggested that to vest it in him subject to a charge would be inconvenient on the ground that the trustees should be able to manage. In our view It was the wish of the testator that at his death the doctor should have Raymond House as his property, he being the lawful son and the one who should take the principal items of property – the family mansion, so to speak, which normally would pass from him to his lawful children. The law favours early vesting, and it would be wronging the doctor to say that he must waft for ten years before the house can vest in him, for what would be the position If he were to die in the interval?
There is this besides; Raymond House is one item of property; the doctor can use the dwelling-part as he pleases, for it is not caught in the trust fund; and as for the direction in the will that this fund created for ten years shall be fed partly from the rent accruing from the shop part, it was not meant to postpone the gift of Raymond House to the doctor and does not entitle the personal representatives to delay the vesting assent, but only enable them to give it subject to conditions which secure the rights of the trust fund; and the Court would like to hear argument on what the conditions should be if the parties cannot achieve a formula for the vesting assent.
Other Citation: (1965) LCN/1262(SC)