In The Matter Of The Estate Of N. F. Williams & Ors V. In The Matter Of Mary Samuel (1945)
LawGlobal Hub Judgment Report – West African Court of Appeal
Motion to appoint the Public Trustee “to collect funds from portion of Estate—Order of Court covers the whole estate—Not applied for—SeCtions 11 and 14 of the Public Trustee’s Ordinance—Removal of Executor.
Held: The order made and affecting the whole estate was wrong. The Court was wrong in making an order under Section 14 in the absence of application and of any sufficient cause shown. No cause to justify the removal of executor.
- F. Cameron for Appellant.
- E. David for Applicant-Respondent.
The following judgment was delivered by BAKER, AG.C.J.,
On a motion to appoint the public trustee “to collect the funds due and payable to the children of the late N. F. Williams, deceased’, and Mary Samuel from the Lagos Mortgage and Investment Coy., Ltd. “, the Court made the following order on the 6th of June, 1945 :—
“The testator died about four years ago bequeathing to the children of Mary Samuel 45 % of his shares in the Lagos Mortgage and Investment Company Limited. Mr. David, who appears for the legal guardian of these children, informs me that the guardian is unable to obtain the children’s shares and says that despite repeated applications for it, she can obtain no satisfaction from the present executor.
Mr. Odunsi, who appears for Angus Williams, the sole surviving executor, the Aher two named in the will having retired, opposed the motion on the ground that no grounds had been advanced to show that the executor had in any way mal-administered his trust. It is not a question of mal-administration, it appears to be a question of undue delay, and in my judgment it is desirable iu the interest of the
beneficiaries that the public trustee be appointed in place of the existing executor (Angus Williams).
And under my powers conferred under Section 14 of the Public Trustee’s Ordinance, 1938, I do appoint the public trustee to be executor of the estate of the late Nathaniel Fehintola Williams in place of the said Angus Williams “.
Counsel for the applicant-respondent does not seek to support an order which covers the whole estate and which was not applied for. There are other beneficiaries and they were not before the Court. Counsel in his argument referred to section II of the Public, Trustee Ordinance No. 15 of 1938, which reads :—
” The Court may remove a private trustee if the Court is satisfied that the continuance of the existing trustee in office may be detrimental to the execution of the trust notwithstanding that misconduct or maladministration has not been proved against him”.
but the Court considering section 14 to be the relevant one proceeded to make an order under the section which says :—
” The Court may, on the application of any person beneficially interested, appoint the public trustee, if sufficient cause is shown, in place of all or any existing executors or administrators or of any guardian of infants, or committee or receiver of a person incapable of managing his own affairs “.
It is obvious that the learned Judge could not in the circumstances make an order which would apply to the whole estate. We also think that he was wrong in making one under section 14 in the absence of any such application and of any sufficient cause being shown. The omission to pay funds owing may or may not be due to default, but there is here a complete absence of any evidence, and the affidavit discloses no cause whatever to justify either the removal of the trustee, that is the Appellant, or the appointment of the public trustee in his place.
The appeal is allowed and the order of the Court below is set aside. Costs are assessed at twenty-five guineas in favour of the Appellant, to be paid out of the estate.