Lagos, 17th May, 1935.

                       Cor. Aitken, Graham Paul, and Barton, ,J.J.

                                                    1.  ABUSATU BALOGUN

                                                     2.  SHADIYA TINUBU                              Plaintiffs-Appellants.

                                 v.

                                  1.       AMODU AYINLA BALOGUN

                                  2.       YESUFU EYIOWUA WI

                                  3.    IMORU OHUNGBOGBO

                                  4.    ADAMO AKEJU CHIEF OBANIKORO

                                  5.       HENRY CARR

                                   6.       BUSARI BALOGUN                    Defendants-Respondents

 

                 

 

Appeal Court. Lagos, 17th May, 1935    Appeal from Judgment of Supreme Court.

 

 

Testamentary Disposition- Consistent use of words" Native Law and Custom" -Native Law specific devise of allowance to eldest son as Head of Family-Same paid by trustees-Interpretation of Will-Costs out of estate.

Held (Aitken, J. dissenting): There was implied authority that allowance be paid; appeal dismissed, except as to costs. Held unanimously:

On merits appellants allowed costs in Court below out of estate: both parties allowed costs in Appeal Court as between solicitor and client to be paid out of estate.

The facts of this case are sufficiently set out in the judgments.

A. L. Johnson for Appellants.

R. F. Irving (J. Martin with him) for Respondents.

The following judgments were delivered;-

AITKEN, J.

This case arises out of the 'Will of a wealthy Lagosian trader named AlIi Balogun. The Will itself is dated the 27th August, 1932; there was a codicil thereto dated the 17th of June, 1933, which does not affect the questions argued before us; the testator died at Lagos on the 13th of July, 1933, and his Will was duly proved on the 24th of October of that year.

The Will itself-I need not refer to the codicil-is an elaborate and exhaustive document, drawn up in accordance with the provisions of English law but making frequent reference to " native law and custom." I quite agree that full effect must be given to all the testator's expressed wishes in regard to such " native law and custom", but I am also very clearly and firmly of opinion that his wishes in regard to any subject dealt with in his Will can only be ascertained from the words he has used therein. No omissions can be supplied, and no rectifications can be made

We are here to say what the testator has done, not what he ought to have done; and I feel very strongly that we should offer a firm resistance to all arguments that appeal to our emotions rather than to our reason. Now I have already described the testator's Will as an elaborate and exhaustive document, but the provisions which have given rise to the questions agitated before us may be set out quite shortly as follows:-

Firstly, the devise of the testator's house known as No. 35 Victoria Street Lagos and "all plates, furniture, pictures and " books" therein, to the trustees" during the period of twenty-one " years after the testator's death or such period as is allowed by "native law or custom," in trust for the head of his house according to native law and custom to the intent that such house and furniture etc. should be taken to be one in the aggregate and should remain as the testator's family house" with the incidents " of native law and custom thereto attaching:"

Secondly, the direction that the testator's eldest surviving son-the defendant Busari Balogun-should during his lifetime be the head of the family under native law and custom and should occupy and live in No. 35 Victoria Street:

Thirdly, the direction that all ceremonies, be it of marriage or baptism, should take place in No. 35 Victoria Street:

Fourthly, the direction that all the testator's wives should be allowed to continue in occupation of the rooms occupied by them in this No. 35 Victoria Street house at his death during widowhood and good behaviour along with their children, with further directions to ensure that any rooms falling vacant should be occupied by " immediate" members of the family only; and

Fifthly, a direction that the trustees should on no account lease out, sell or partition amongst the testator's children this. family house. N one of the numerous devises and bequests to be found in the rest of the ,will and in the codicil appears to throw any light. on the meaning of these five provisions, and the only other provisions of the Will that I need mention are those constituting and finally disposing of what the testator calls his residuary trust fund.

That fund is to be constituted out of all his real and personal estate not otherwise disposed of, and a considerable number of monthly or annual payments to the testator's children and others are charged thereupon. At the end of twenty years from the testator's death certain other lump sum payments are to be made therefrom, and the balance then remaining is to be divided amongst the testator's children or the issue of any deceased children in equal shares per stripes. When that division takes place it would seem that the testator's estate should be, to use his own expression, " fully administered."

:    Having thus set out the provisions of the Will out of which the questions before us arise, I can pass on to the questions themselves. the defendants are the executors and trustees of the Will, and from some date which does not exactly appear put which must have. been shortly after the testator's death, they began to make Busuri Balogun, in his capacity of head of the family, an allowance of £10 a month out of moneys belonging to the testator's estate in their hands. The plaintiffs, who are daughters of the testator and entitled_ to a share in .the testator's residuary trust fund as well as to other benefits under his Will, objected to such payments :and eventually commenced this action for the purpose, inter alia, of restraining the defendants, in their representative capacity, from continuing such payments. The writ of summons itself was very badly drawn, but I do not think the plaintiffs can be blamed for that, and the learner] trial .Judge did eventually succeed in getting it amended so that it raised the obvious complementary claim for a refund to the testator's estate of the payments already made to Busari Balogun.

\When the action came on for trial before Butler Lloyd, J. on the 31st of January, 1935, evidence was led on behalf of the plaintiffs to place the testators's Will before the Court, and to show that at least two sons of the testator, in addition to the plaintiffs themselves, objected to the monthly allowance of £10 which was admittedly being made by the executors to Busari Balogun. At the end of the plaintiffs case Mr. Irving submitted that there was NO case for the defendants to answer on the ground that since Busari, as head of the family, was required to live in the family house No. 35 Victoria Street, an allowance for entertainment was implied. It is of some importance to bear this ground of sub­mission in mind, as it shows clearly for what purposes learned counsel then considered that Busari Balognn's allowance was being paid. The learned trial .Judge overruled Mr. Irving's submission on the ground that as the defence was relying" upon a custom of " making payments to the head of the family for the upkeep of a " family house or other similar purposes," that custom would have to be proved by evidence. The obvious criticism of this ruling is that Mr. Irving was not then relying' on any such custom, but was alleging a very different custom, to wit, one of making an entertainment allowance to the head of the family. It is idle to guess at the reasons which led to this metamorphosis, but it is note­worthy that it occurred.

To prove the custom he alleged, or the custom propounded by the learned trial ,Judge-I don't know which-Mr. Irving called the Rev. T. A. Ogunbiyi, Chief Obanikoro who is one of the defendants, and Busari Balogun himself. The evidence each of these gentlemen gave may be summarised quite fairly in his own words as follows:-

"Rev. T. A. Ogunbiyi,.- Chief  in Holy Orders: living at Ikeja. I am sixty-eight years of age. I am familiar with Yoruba custom and have quiver evidence as to it before. We have a. family house at Ebute Era

and others. I am the head and manager. My father left no will  I maintain the family house out of the incomings. If a house is left  as a family house by will I should expect the head of the family to keep & an it up out of incomings if any. If none he will apply to the executors. v. If he keeps up the prestige of the family the head will be entitled to an allowance for maintenance and entertainment. I know of no specific instance of this. He will look after the children while minors but not out of his own pocket.                                                        

   Chief Obanikoro.-One of the executors of Balogun's estate. He was a friend/of mine and I often visited him. He was a very wealthy. man. did things well and entertained a lot. Had he left no will the eldest son would have succeeded as head of the family and to the liabilities which he would meet from the income of the estate.

    Alli Balogun provided for his sons approximately equally. Even if an eldest son, if he had a larger share would not be expected to payout of his own pocket.

    The allowance to Busari was known to me, though I did not actually authorise it. I suggested it wasn't enough. I discussed the matter with Mr. Carr who agreed with me. No member of the family has complained to me.

     By Court.-I myself actually suggested an allowance because I thought it necessary for expenses in connection with education and maintenance of children and charity and hospitality.

     Balogun was not a Chief. Chiefs do not usually .make a will. He was a trader. His son should occupy the same position as his father. Ba]ogun disposed of all of his property. I got something as executor. There were many legacies to friends. I know of no other similar case to this

.   Busari Balogun-Eldest son of AlIi Balogun. My father lived entirely according to native law and custom. I have now taken on the duties of the head of the house. I have tried to carryon as he did. I have to entertain strangers with money and food. I am on the committee of the mosque. I also look after the minor children some of whom are poorly provided for. I pay the whole electric light bills' and Conservancy and a yard boy.

    Immediately after my father's death a family meeting was held and an allowance of £10 was agreed to and later by the executors. No one has ever objected.

    By Court.--I am in fact losing money over this. £10 is not enough for everything, I had no more property left me than my brothers.

    I did not receive £130 as rent from one' of my properties. Alakoro Street was devised to my sons. I drew a cheque for £200 for funeral ceremonies of my father. I and another brother bought my father's car. All the family were present at the meeting immediately after my father's death. I presided. Plaintiffs agreed then. I have had the £10 ever since my father's death. I also got £3 a month and some rents. The rents used to be about £8 a month but ate less now.

     My father left legacies to various retainers. I only do what my father did. Ladipo is the yard labourer. My father had a boy Dye. Yunusa is a boy under age. He is an apprentice tailor. He had £5 under the will which is not enough. I had to help Disiriyu as his tenants wouldn't pay.

       His mother had an allowance. Biliaminu is a minor. So is :Muyibi, he is an apprentice carpenter. They all have a share or rents. Bolaji has £3 and is a scholar at King's College. Ganiyu also has a house but I am assisting him as his tenants won't pay.

There has been a number of marriages and baptisms; the family have not contributed for them. I am familiar with the will. He made provisions for nearly every body. 'there is a residuary fund.

By Court.-My father had about £5,000 a year. :My private income is about £100."

One other witness was called for the defence, namely Sabitiyu Balogun, a daughter of the testator; but her evidence is perfectly valueless on the question of native custom. Upon this evidence the learned Judge held that the executors were justified in making the allowance of £10 a month to Busari Balogun in his capacity of head of the family, and the gist of his judgment appears to be contained in the following passages, which I will quote in full:-

" With regard to the facts of this case, there is little to add to what I said in dealing with Mr. Irving's submission that no case had been made out for him to answer. From the evidence which has now been made out for the defence I am satisfied:

(1) That the customary head of a family has duties of an onerous nature in connection with family ceremonies, the maintenance of the family house and of needy members of the family, and hospitality to strangers;

(Z) That he is entitled to reimburse himself for expenditure in connection with these duties from family resources in his control or failing such resources by contributions from members of the family;

(3) That· in the present case the executors made the allowance complained of to the head of the family for the purpose of reimbursing him for expenditure of this nature;

(4) That the allowance has been spent in a manner intended.

But the question remains were the executors justified, or were they committing a breach of trust, in taking upon themselves to make this payment? In strict English Law they would not be justified in going outside the actual terms of the Will, at any rate without the sanction of the Court, but the legislature has provided in section 20 of Chapter 3 that in matters relating to testamentary dispositions amongst other things no person shall be deprived of the benefit of any existing custom not being repugnant to natural justice, and has given this Court the right to observe and enforce the observance of such custom."

" Now what was in the mind of the testator in making this Will? He was a rich man owning a considerable quantity of real property over which he had an absolute right of disposal. He devised the bulk of this property specifically to members of his family, probably with the idea of avoiding the wrangles and legal expense commonly incident to the partition of an estate of this size. At the same time he directed that certain property should be retained as a family house in accordance with native law and custom, and directed that the eldest son as head of the family should live in that house and that family ceremonies should be held there; but he placed the control of the family affairs, not as would have been the case had he died intestate in the hands of an unwieldy and possibly quarrelsome family meeting, but of a care­fully chosen body of executors. He gave the eldest son no larger share than the others, but while clearly intending that he should continue to carry out the duties I have specified above, he failed to provide the means which would enable him to do so. Can it be said that the executors were guilty of a breach of trust in supplying this omission? It must not be forgotten that Wills are a new thing in this country, and that testators cannot be expected to make their wishes as clear as in a country where Willis have been made for centuries, where unlimited precedents are available, and where the tenure of land is not complicated by the persistence of native custom, and it was no doubt for the purpose of giving effect to the real intention of a testator and of avoiding the necessity of a too rigid adherence to the ipsissima 'rerba of a 'Will that testamentary dispositions were included in section 20. In my view no breach of trust has been committed here. To hold otherwise would in the present case result in depriving the person designated as head of the family of the benefit of his customary right to reimbursement for the expenses necessarily. thrown upon him by his position.

There will be judgment for defendants."

Well, I see no reason to quarrel with the learned trial Judge's findings of fact, though the 'evidence in support of them is far from strong, but those findings do not seem to me to go anything like far enough to justify the £10 a month allowance which the defendants have been making to Busari Balogun in his capacity of head of the family. To my mind to justify any such allowance in a case like this, it is necessary to prove a native custom entitling a head of the family to contributions from the testator's estate even though the testator's Will contains no provision whatever relating to any such contributions. In other words, it is necessary to prove a native custom which supplies a testator's omissions and re-writes his Will for him-a very powerful native custom indeed and for the life of me I cannot see that anything remotely resembling the shadow of such a custom was proved before the learned trial Judge. If such a custom does, in fact, exist here or anywhere, then the golden rule of construction that a testator's intentions are to be collected from the words he has used has gone by the board, and with a vengeance. Now in this case I am in a small minority of one and therefore, by a pncsumptio juris et de jure, I must be wrong j yet it seems to me that my learned brethren have not only decided in favour of the existence of such a custom as I have just described, but have also added at least two clauses to the testator's 1Vill which may, conjeeturally; be stated as follows: -

No. 1.-" And I hereby authorise, direct and empower my trustees to make such allowance out of my residuary trust fund as they, in their absolute discretion, shall think fit, to my said eldest son Busari Balogun for the following purposes, to wit (a) for the purpose of enabling him to maintain my said storey house and land No. 35 Victoria Street, Lagos, as my family house and (b) for the purpose of enabling him to keep up that prestige, dignity and reputation for generosity which I regard as inseparable from his position as the future head of my family".

No. 2.-" Notwithstanding every thing hereinbefore contained and in particular notwithstanding the direction whereby my trustees are directed to distribute the whole of my residuary trust fund after a period of twenty years from my death, I hereby vary that direction by empowering and authorising them, at the end of such period, to retain such part of my said residuary trust fund in their hands as they, :n their absolute discretion, shall think fit, for the purposes of (a) providing for their own remuneration under this my Will, and ( b) providing a fund out of the income arising from which my said storey house and land No. 35 Victoria Street, Lagos, shall be maintained as my family house for such period as is allowed by native law awl Custom "- which is, so my learned brother Graham Puul informs me, for ever.

      WeIl, I suppose I must be wrong; I suppose this native custom of magical force and power does enable the Courts of this country not only to repair omissions in testator's Wills, but also to alter their dispositions and extend their effectual operation from a mere twenty years to infinity. I suppose that all these things can be done, but my mind is, unfortunately;, far too pedestrian to keep pace with them. The golden rule which I enunciated earlier on shall be my refuge, and I must most respectfully decline to take any part in supplying a testator's omissions or altering or extending his dispositions.

It if! argued that these things can be done by virtue of section 20 of the Supreme Court Ordinance, but to my mind that section merely provides that where a testator expresses a desire that his dispositions shall be interpreted and take effect in accordance with native custom, his wishes shall be respected. And why not? ,But how can such a provision be interpreted to mean that native custom can ,be applied to amend, extend and alter a testator's dispositions? here again I suppose that it can, because three learned Judges say that it can; but in spite of my readiness 'to learn I find my capacity for assimilating novel propositions of law unequal to the occasion.

Other questions arising out of the position my learned brethren's decision will create occur to me, for example : -What is to happen if the family remove Busari Balogun from his head­ship, as they are fully entitled to do? Is this upkeep and maintenance of house and prestige allowance payable to all or any of Busari's successors in the headship of the family, or only to Busari? Suppose the Balogun family leaves Lagos, or ceases to live in the family house, or ceases to exist, must that family house still be repaired and maintained by the trustee? And what is to happen to the £25 a year payable to the trustees until the testator's estate be fully administered-a period fixed by him at twenty years after his death but now to be extended indefinitely? But what useful purpose can be served by canvassing these questions now seeing that, axiomatically, my learned brethren are right and I am wrong. I have at any rate said sufficient to explain the main grounds on which I feel compelled most reluctantly, to differ from them, and it would help no one were I to continue ·with my arguments or to suggest to what extent I, personally, think that the trustees would be justified by the testator's Will in repairing and maintaining his family house No. 35 Victoria Street. The exact form or order to be made in this case will be that propounded by my learned brother Graham Paul, and I agree that the Court's of both parties in this Court and in the Court below should be borne by the testator's estate. The point raised in this action is both novel and important, and it is a point that should be determined as much in the interests of the trustees as in the interests of the beneficiaries.

GRAHAM PAUL, J.

As I find myself in regretful and respectful disagreement with the learned President of this Court I must deal at some length with the questions raised on this appeal.

The fundamental issue in this appeal is as to the interpretation of the 'Will of the late AlIi Balogun, a very wealthy trader of Lagos who died on 13th of July. 1933, leaving a very large estate to be dealt with under his 'Will.

The plaintiffs-appellants are two of the daughters of the late AlIi Balogun and the defendants-respondents are sued "by themselves and as the legal personal representatives of the late AlIi Balogun" The respondents are in fact the executors and trustees of the late Alli Balogun's Will.

     The respondents as such trustees decided to make, and did make, to Busari Balogun, the eldest son of the testator, out of the residuary trust funds in their charge under the Will, a monthly allowance of ten pounds. The appellants in this suit seek an order that any such payments made by the respondents should be refunded by them to the residuary estate of the testator, and that the respondents should be restrained by injunction from making any further such payments. The ground of the appellant' claim is that the payment of this allowance is not authorised by the testator's Will.

At the trial the defendants' counsel at the conclusion of the plaintiffs' case submitted that there was no case for the defendants to answer but the learned trial Judge ruled against him and directed that the defence should proceed. The appellants in this appeal appealed against that interlocutory judgment as well as against the final judgments, but at the outset of the hearing of the appeal their counsel withdrew the appeal so far as it concerned that interlocutory judgment and the appeal as regards that judgment was dismissed. At the conclusion of the defence the learned Judge in the Court below dismissed the plaintiffs' claim and against that judgment they have brought this appeal.

By his Will the testator directed that his eldest surviving son should during his life-time be "the head of the family under " native law and custom". He further directed that his said son should occupy and live in "Makanjuola House" and that all ceremonies "be it of marriage, baptism, (Ikomo Jade) " should take place in the testator's said family house.

Earlier in his Will the testator had devised unto his trustees during the period of twenty-one years after his death or such period as is allowed by native law and custom, " in trust for the "head of my house according to native law and custom" the plate, furniture, etc. in "Makanjuola House" and the house itself (together with another house property) and in regard to whose properties the testator added " the same shall be taken to " be one in the aggregate and shall remain as my family house " with the incidents of native law and custom thereto attaching" .

There is a further direction in the Will that on no account are the trustees to lease out, sell, or partition amongst any of the testator's children, his said family house and a child so insisting shall forfeit his or her interest in the same.

It is mainly under the provisions of the Will to which I have referred that the defendants made, and contend that they had a right and duty as trustees to make, the allowance in question.

I must confess that throughout the arguments I have seen no difficulty whatever in accepting the view of the defendants. In fact upon the pleadings and the evidence for the plaintiffs it seems to me that there was much to be said for the defendants' counsel's contention that the plaintiffs' claim should have been dismissed without caning upon the defendants.

The Courts of Nigeria are perfectly familiar with the position of the head of a family under native law and custom-particularly in Lagos, although the main principles do not differ very materially in other parts of the country. The head of the family is in charge and control of the family property; he collects the revenue of family property; he has to make certain disbursements out of the family revenue for family purposes, upkeep of the family property, funeral, marriage and baptism ceremonial expenses of members of the family often involving the entertain­ment of strangers, litigations on behalf of the family, maintenance of indigent members of the family, education of children and so on. The head of a family has very considerable and onerous duties to perform, varying in degree of course according to the size, wealth and importance of the family. And I have never heard it suggested that the head of a family had under native law and custom to meet the expenses of duties properly incidental to his position as head of the family out of his own money as distinct from family funds.

It is true perhaps that there is no ease to be found in the Nigeria Reports specifically laying it down that the head of a family in Lagos has the rights and duties as regards family revenue and family expenditure which I have specified. The reason is that no one has ever thought of questioning these rights and duties. It is however by no means an uncommon thing for members of a family to query the dealings of the head of the family with family funds. In the short time I have sat on the Bench in Lagos I have had several such cases in .court. They have been claims for an account., and items of expenditure have been examined to see whether they were proper family expenditure or not. It is in such enquiries that the principles of native custom I have enuncittted have emerged and have received judicial recognition and sanction.

I have considered it necessary to recite these judicially recognise(] principles of native law at some length before approaching their applicability to the present case as it seems to me that throughout this case due weight has not been given to those principles.

Counsel for the appellants in his argument. before this Court demonstrated that the provisions of the Will as regards the family house simply left the position as it would have been in intestacy under native law and custom. I agree with him in that, except as to the interposition of trustees. But I go a little further. Counsel for the defendant by " House" meant only the fabric of the building. My view is that his remarks apply' equally to the " Rouse" in the wider sense of the word as used in the "Tin when the testator refers to the " Head of my House " .

Ordinarily under native law and custom if AlIi Balogun had died completely intestate his eldest son would have become head of his family under native law and custom-that is admitted by counsel for the appellant. Part of his immediate duties would have been to distribute among the members of the family-in consultation with the principal members of the family-and probably with assistance and advice from friends of the family the real and personal properties of his deceased father. Such distribution often leads to family feuds, sometimes to a complete disruption and disappearance of the family as a real unity. The large numbers of partition or sale suits in the Divisional Court at Lagos in the last ten years are evidence of that. The late AlIi Balogun from the terms of his Will was obviously very well aware of that. The clauses in his ·Will disinheriting- any child who became quarrelsome or caused litigation or who insisted on partition of the family house are definite clues to his apprehensions. In his Will he deliberately relieved the head of his family who was to succeed him from this fruitful cause of family dissensions by himself sorting out in his Will his real and personal properties among the members of the family, ann. by giving the residue to trustees to control for twenty years.

There is something almost pathetic in the picture of this shrewd and worthy man who had made his own fortune putting his thumb mark to his Will with two main ideas in his head. He wanted to deal with all his properties and with all the members of his family individually so as to avoid disputes. But above all he desired to perpetuate his family house and his family. He devised the family house to his trustees for twenty-one years after his death or such period as is allowed by native law and custom. He provided that any child trying to have it partitioned should be disinherited.

It may be an interesting question what is to happen to this devise in trust on the expiry of twenty-one years from the testator's death. But that question is not in this appeal or for this Court. It is the obvious intention behind the devise that matters now.

The properties, real and personal, which the testator dealt with in his will were his own to do with as he liked. Nothing of what he owned was his by inheritance under native law ann. custom. Nothing of it all was communal property. It is safe to say that in this country where, as some think, the individual is crushed down by· the communal system there has never been a native of the country who to anything like this extent was free to dispose of a large estate absolutely as he liked.

What he calls the " Family House" in his Will is simply what he decided he wished in future to be his family house. He deliberately put it in a different position from any other part of his estate, real or personal. If he had not wished-and I think the material parts of his Will show that he fervently wished-to perpetuate his family house and his family as unities to persist under native law and custom, he could have left out all reference to a family house or to a head of his house or to a head of his family or to native law and custom and directed instead that the buildings be sold and his eldest son get a definite share. But he elected otherwise. His Will shows clearly his intentions. He desired his family house and his family to be perpetuated as unities with all the incidents of native law and custom, and he charged his trustees and directed his eldest surviving son accordingly. It is impossible to read this Will without realising that the testator intended that the family house and the head of the house should continue with a suitable prestige. I agree entirely that we must in deciding this case be guided by our reason and not by our emotions but it is necessary to bring to the reading and interpreting of a Will a certain amount of sympathetic human understanding of the testator's mind as revealed in his Will.

To my mind the references in the discussions in this suit and in this appeal to sections 20 and 16 of the ,Supreme Court Ordinance represent a much too narrow view of the issues involved. The broad view, and in my opinion the correct view, is that we must arrive at the real intention of the 'testator as. expressed in  the Will, and give effect to it.            '

Shortly put, the intention of the testator, as I understand it from his Will, was to make his eldest surviving' son head of the family with all the rights and duties of a head of a family under native law and custom except in so far as these rights and duties are in the '\Till expressly restricted by devises or directions to the trustees or to individual members of the family.

With all his voluminous devises and directions the testator has still left a residuary estate. That residuary estate "not otherwise specifically disposed of" is vested in the trustees. Taking that vesting of the residuary estate along with the direction that his eldest surviving son should be the head of the family under native law and custom I am of opinion that the residuary trust fund is a fund to which the head of the family is to look for the expenses of carrying out his functions qua head of the family. It is true that there is a provision for the ultimate division of that fund but that division must be subject to the trusts created and to the directions given by the testator.

The persons in charge of that fund are not the members of the family but trustees very carefully chosen' by the testator.

It is important to note that the devise to the trustees of the family house is for twenty-one years or such period as is allowed by native law and custom (probably in native law a devise in perpetuity) whereas the residuary trust fund is to be divided after twenty years. It may be that the trustees will have to come to the Court twenty years after the death of the testator for directions as to what they are to do in respect of the conflicting provisions of the Will, but that question need not now be dealt with.

Faced with the devise of the family house and the direction as to the eldest son being head of the family under native law and custom the trustees might have said to the head of the family , , You must carryon as head of the family and you must " let us know whenever you wish to incur any expense however " trifling in that capacity and we shall then have a meeting of "trustees and decide whether we shall give you the money". The trustees have not taken that cumbersome course and I do not blame them-some of them are busy men. Instead, they have considered all the circumstances, the onerous nature of the duties, and the funds available, and they have decided that an average of £10 a month is a reasonable amount to allow the heac1 of this large house to cover his expenses in that capacity. Though the amount is actually spent by the head of the house the responsibility for the amount is that of the trustees. If the trustees are not satisfied with the way the head of the house is spending his £10 a month, they can stop it or reduce it. As a condition of its continuance they can call on the head of the house for an account of how he spend it.

In the course of the arguments there have been a good many reference to :English practice and English analogies. These analogies are sometimes dangerous but I should like to refer to one. If in England a testator directed in his 'Will that his eldest son was to be educated at Oxford University, without specifying how much was to be spent or from what fund, no one would dream of suggesting that the trustees should carry out that direction in any other way than by making out of the residuary trust fund such an allowance to the son as they considered reasonable. And so long as the amount was reasonable, no Court would interfere. To my mind that is a helpful analogy in principle.

This is not an action for an account. It is an action for an order to stop altogether the trustees from allowing to the head of the family the supplies to which as head of the family under native law and custom he is in my opinion clearly entitled. The trustees in this suit upon the statement of claim and the evidence for the plaintiff were not called upon to meet a case that the head of the family had spent more than under native law and custom he was entitled to spend, or that the trustees had given him more than as head of the family under native law and custom he was entitled to spend. The case they were called upon to meet was that the head of the house was not entitled to any­thing' out of the estate to meet his expenses as head of the house.

There is no provision in the Will that the trustees are to payout of the family fund available, namely the residuary trust fund, the cost of upkeep and repairs of the family house but counsel for the appellant when I put the point to him agreed that it was implied that the trustees should do so. It seems to me only logical to hold that the same implication is to be read out of the 'Will in regard to the upkeep of the headship of the family.

It is suggested that if this Court upholds the judgment it will be arrogating to the Courts a power to re-write the testator's Will for him, or to insert a provision which the testator left out. Emphatically I cannot accept that suggestion. the position seems to me exactly the other way round. It is the appellants who ask the Court to insert, at least in two places in the Will, a provision not put there by the testator, a very vital and contra­dicting provision to something like the following effect:-

" But the head of my family contrary to native law and " custom is to payout of his own pocket expenses he may " incur as head of my family and is not to be reimbursed "out of the family funds available namely the residuary " trust fund".

I can be no party to the insertion of such a provision in the testator's Will.

From my experience of cases where the head of a family has accounted for his expenditure on family matters I have no doubt whatever that £10 a month in this case is a very moderate allowance. If I had had any doubt on that point and had wished to have sound advice of two people on it I should quite probably have chosen Chief Obanikoro and Mr. Henry Carr to advise me. As it happens they were specially chosen by the testator himself as guardians of his estate which in my view gives to the opinions of these two trustees on this question an even greater weight than their experience and reputation alone would entitle them to. I th in kit was a wise choice of trustees and I see nothing in this case to justify the Court in going against the trustees' views as to the reasonableness of the allowance made. It appears in evidence that both Chief Obanikoro and Mr. Henrv Carr considered the allowance too small and there is no substantial evidence to contradict them.

I am of opinion that the appeal on the merits should be dismissed with an order that the costs of each side in this Court assessed at fifteen guineas be paid out of the estate, the appellants to have in addition out of the estate the sum of £19 Is. as out of pocket expenses. But I desire to add a grave warning that this allowance of costs to the unsuccessful party out of the estate is not to be a precedent to be followed in other cases unless Which the Court concerned is absolutely satisfied that the unsuccessful party was reasonably expectant o{ success. I agree with the views expressed by the learned trial Judge as to the danger of encouraging speculative litigation.

As regards the appeal on the question of costs I think that the plaintiffs should have been allowed their costs out of the estate, assessed at the same figure as those of the defendants, namely sixty guineas.

BARTON, J.,

This case consisted originally of three appeals, the first appeal being from a ruling by the Court that there was no case for the defendants to answer, the second being from a judgment on the merits, and the third from the Court's order as to costs.

The first appeal has been withdrawn, the respondents' counsel not asking for costs, it only remains, therefore, to deal with the second and third appeals.

The second appeal, which is the main appeal, deals with the construction of the Will of one AlIi Balogun who died at Lagos on the 13th July, 1933. 'The two plaintiffs, who are daughters of the deceased, alleged that the defendants, who are the executors and trustees of the deceased's Will, committed a breach of trust by paying Busari Balogun, one 'of their number, a monthly allowance of £10, the total of such payments amounting to £200 which they claim should be refunded to the residuary trust estate. The plaintiffs also claim an injunction to restrain the defendants from continuing to make these payments. The defendants admit that they made the payments alleged but assert that they were justified in doing so, as, in making them, they acted in accordance with native law and custom and in accordance with the intention of the testator as shown on the face of the Will. The learned Acting Chief Justice, who was the trial Judge, gave judgment for the defendants. Now it is clear from a perusal of the Will that there are no expreS1J words authorising these payments, the question therefore to be decided is whether there is an implied authority from the words used.

It appears from the Will that the testator devised unto his trustees, " during the period of twenty-one years after my death or such period as is allowed by native law or custom in trust for the head of my house according to native law and custom", the plate, furniture, etc. in his house No. 35 Victoria Street, Lagos, known as Makanjuola House " so that the same shall remain in and be in and form part of my family house so far as is permitted by native law and custom, together with my said house No. 35 Victoria Street, also Nos. 20 and 24 Isale-Agbede Street, Lagos, aforesaid with the outhouses and appurtenances thereto to the intent that the same shall be taken to be one in the aggregate and shall remain as my family house with the incidents of native law and custom thereto attaching." Later on in the Will the testator directed as follows: -" I also direct that my eldest surviving son shall during his lifetime be the head of the family under native law and custom and shall occupy and live in my said house, Makanjuola House, at 35 Victoria Street, aforesaid."

The testator further directed that all ceremonies of marriage and baptism of members of the family were to take place in the said house and that "my trustees shall on no account sell or partition amongst any of my children my said family house, and a child so insisting shall forfeit his or her interest in the same." The 'Will is a long one and the testator was evidently the owner of a considerable amount of house property and a very wealthy man and, the number of .times he makes use of the expression " native law and custom" when alluding to the family house and the head of the family, indicates to my mind that he was a man who had a great respect for such observances. After the plaintiffs had closed their- ease in the Court below it was submitted by the defendant8' counsel that there was no ease to answer and the learned Acting Chief Justice 'quite properly ruled that as the defendants relied upon native law and custom as their authority for making the payments it was necessary to prove that custom by evidence.

Evidence of native custom was then taken and the Court found as follows:-

(1) that the customary head of the family has duties of an onerous nature in connection with family ceremonies, the maintenance of the family house and of needy members of the family, and hospitality to strangers;

(2) that he is entitled to reimburse himself for expenditure in connection with these duties from family resources in his control or. failing such resources, by contributions from the members of the family;

(3) that in the present case the executors made the allowance complained of to the head of the family for the purpose of reimbursing him for expenditure of this nature; and

(4) that the allowance was spent in the manner intended.

Throughout the case there has been no suggestion that the amount of the allowance which was paid to Busari Balogun, who was the eldest surviving son of the deceased and who occupied the family house as head of the family, was excessive. Now even if the defendants had not paid Busari any allowance at all, they as trustec3 under the Will would be responsible for the upkeep of the fabric of the building; instead of expending money on this themselves they gave Busari an allowance for this purpose such allowance also to cover expenditure incurred by him as head of the family according to native custom. As regards that part of the allowance which it was necessary to expend on the upkeep of the fabric, it is clear that if the defendants were at any time not satisfied that the money was being spent for this purpose they would be entitled to stop it, and, as 'regards that part of the allowance which was paid to cover expenditure arising from duties as head of the family, it would to my mind be unreasonable for Busari to be expected to pay for it out of his own pocket, I cannot believe that this could have been the testator's intention, and, in this connection it has to be remembered, that the testator directed that no part of the family house was to be sold or partitioned, and also that he gave Busari no larger share than to his other children. Under section 20 of the Supreme Court Onlinance native law or custom not being repugnant to natural justice, equity and good conscience is applicable in causes or matters relating' to testamentary dispositions where the parties are natives, that is to say if a testator who is a native directs that native law and custom is to be applied in carrying out his "Will, it is to be applied provided it is not repugnant to natural justice, equity and good conscience. After considering the Will as a whole and having regard to the expressions therein contained, and to which I have referred, I am of opinion that according to its true construction it was the implied intention of the testator that his eldest surviving son was to be reimbursed for expenditure in maintaining the family house and for expenditure incurred according to native custom in his position as head of the family; I am of opinion that especially is this intention to be implied from the words "and shall remain as my family house with the incidents of native law and custom thereto attaching" and the words directing that his eldest surviving son " shall during his lifetime be the head of the family under native law and custom and shall live in my said house," and that such a construction is in no way adding to the terms of the Will.