Peter Henry Schandorf & Anor V. Christian Mensah Holm & Anor (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Will—Executors—Administration—Claim for payment of profits Appeal. fromjudgm entof trust estate and possession—Continuing charges—RequestDtvisional of of residue to Executors—Intestacy. Court.Practice and Procedure—Pleading—Non-joinder of parties—Action by two of several cestuis qui trustent—Claim against executors for accounts, balance due on,. account, and possession—Finding of devastavit and mat-administration.

Facts

Plaintiffs, two of several children of the deceased, sued his Executors, claiming as beneficiaries under his will, (1) an account of the personal estate of the deceased coming to their hands or which should properly have come to their hands as Executors, (2) an account of its administration, (3) possesssion of the real estate, (4) payment of such rents and profits of the real and personal estate as should be found due.

The plaintiffs took no steps to join the other beneficiaries.

The deceased’s real estate consisted of a house in Kumasi, which he devised to his children charged with the payment of £72 a year out of the rents to his wife for her own and the children’s maintenance and the education and training of his children not yet out of school. At the date of the writ at least one child was still at school.

As regards the personal estate, deceased bequeathed ” the residue of all I am worth ” to the Executors without further direction as to its application.

The defendants produced their accounts and later both parties agreed that an account should be taken by a referee. The referee having submitted his report, the trial Court heard arguments and gave judgment, finding that there had been a devastavit by the executors and that they were liable for waste by maladministration and negligence, and awarding the plaintiffs the balance due under the referee’s report and possession of the real estate.

Held

(i) It was not competent for the trial Court on the basis of the accounts and the referee’s report to deal with and make charges of devastarit and maladministration which had not been alleged in the writ.

2. Plaintiffs, as two only of deceased’s children and not suing in any representative capacity, were not entitled to judgment for the whole amount found due.
3. As plaintiffs had failed to show that there was any balance of profits of the real estate after meeting the charges thereon, there was no case
4. made out for any payment of such profits to the children of the deceased, much less to two only of them.
5. The residue of the personal estate was held by the Executors in trust for the persons entitled to share in the. estate under an intestacy and not for the beneficiaries under the will.
6. Neither the plaintiff’s, nor all deceased’s children had they been joined as plaintiffs, were entitled to an order for possession of the real estate which would make it impossible for the Executors to carry out the trusts declared as to the rents.

Appeal allowed.