Appeal Court, 6th April, 1939. Appeal from judgment Divisional Court.

Construction of Will-Prima Facie, words should be given their ordinary meaning- Will to be considered as a whole- Where words used in a peculiar sense will should be so construed as to ~effect testator's intention.

In two clauses of his will, the testator used the words" I leave in charge of •• The first clause concerned a house and this clause provided that the rent from this house should be divided equally between the three persons in whose .• charge •• the house was left. The second clause read" I leave the land known as Ali's land .... ·in the charge also of the said Madam Amina, Meriam Ali and my son Mama AIi The learned Trial Judge held that there was an intestacy as regards Ali's land and that Madam Amina Meriam Ali and Mama Ali were trustees for all the children of the testator.

Held: That the second clause of the will must be interpreted in the light of the first clause in which the same words .• in charge of" were used and which passed the property to the three persons named for their own use and benefit.

Held Further: (Strother-Stewart dissenting) that Madam Amina, Meriam Ali and Mama Ali took Ali's land as beneficial owners and not as trustees.

Decision of trial Judge on clause 2 of the will reversed.

C. F. Hayfron-Benjamin for Appellant.

A. G. Heward-Mills (with him T. J. Whitaker) for Respondent.

The following judgments were delivered :-

BUTLER LLOYD, AG. C.J" NIGERIA.

In this case no less than twelve grounds of appeal were filed, some of them divided into a number of sub-headings but in my opinion only grounds 5,9 and 10 require consideration.

These are as follows :­Ground 5.

(a) Because the learned Chief Justice did not collect the intention of the Testator from a consideration of the whole Will and determine the meaning of Clause 2.

(b) Because upon a true construction of the Will, the plaintiffs acquired no beneficial interest in Ali's land in Clause 2 of the Will mentioned; on the contrary the defendant and the other favoured Legatees namely, Madam Amina and Mariama Ali did under the Will take Ali's land behind the Mosque at the Zongo Road, Accra, as absolute beneficial owners.

Ground 9.

Because the plaintiff Abiba Ali has shown no title, the defendant having been admittedly in possession without acknowledgment to her for upward of 20 years.

Grou-nd 10.

Because any title which the plaintiff Abiba Ali may have had has been extinguished by the Real Property Limitation Act, 1833.

And of these it is obvious that grounds 9 and 10 need only be considered if the appellant does not succeed upon ground 5.

It will be necessary for the purpose of this appeal to set out Clauses 1, 2, 4 and 6 of the Will-

I. I leave my House in the Horse Road Ussher Town to the South of the late B. D. Coker's House in the charge of Madame Amina, Meriam Ali and my son Mama Ali. The said house is never to be sold but the rent received therefrom is to be divided equally between the said Madame Amina, Meriam Ali and my son Mama Ali.

2. I leave the land known as Ali's land behind the Mosque at Zongo in the charge also of,Madame Amina, Meriam Ali and Mama Ali.

4. I bequeath the balance of my money in the Bank of British West Africa after deducting the (£140) One hundred and forty pounds referred to in the preceding paragraph to Madame Amina, Meriam Ali and Mama Ali. They are to use the money for the benefit of themselves and the members of my family and children in Accra.

5. I appoint Henry Hely Wartemberg of Elmina and Timothy Laing of Accra and Cape Coast Son of the late Revd. Timothy Laing my executors. They are to see that the conditions and the terms of this Will are carried out and they are to be properly compensated by Madame Amina, Meriam Ali, and Mama Ali.

And the only one of these clauses the effect of which has to be considered is Clause 2. It will be noticed that the firs sentence of Clause 1 and Clause 2 are identically worded except for the description of the land and the word" also" in Clause 2.

                                  In both the operative words are :-" I leave  in  the charge of.     " but in Clause 1

these words are followed by a prohibition of alienation and a direction that the rent of the property is to be divided equally between the three persons named who are respectively widow, daughter and son of testator. Clause 4 contains a bequest of certain funds to the same three persons to be used for the benefit of themselves and the members of the testator's family and children in Accra. Clause 6 contains an appointment of executors and a direction that they are to be properly compensated by the three persons named in Clauses 1, 2 and 4.

I t is not disputed that the three persons named therein took a beneficial interest under Clause 1, and the question to be decided is

      whether they also took a beneficial interest under Clause 2 or whether they only took as trustees for those entitled upon an intestacy namely the children of testator.

The learned Chief Justice deals with this question at page 41 of the record. After quoting with approval a decision of Chief Justice Brandford Griffith on a motion for partition of the land to which Clause 2 refers which is in the following terms :-

"Court looks at Will and finds that land is not specifically devised to the three persons who appear but only in their ' charge'. Court is unable to take any steps with regard to partition as it seems as if land was left in charge of the three parties present on behalf of the whole family of the deceased.

" Court declines to grant the application. No costs.

He goes on-

" I have no hesitation in coming to the same conclusion as did Sir W.

Brandford Griffith, C.]. as to the meaning of this paragraph. I hold that by that paragraph Ali's land was not devised to Madame Amina, Meriam Ali and the present defendant but was placed in their charge. It results from this paragraph that these three persons were trustees of the land and held the land not for their own benefit but for the heirs of the Testator, i.e. in this case the children".

And on page 51 he further says:-

" I am satisfied that there is an intestacy as regards Ali's land and that Madame Amina, Meriam Ali and Mama Ali were mere trustees and should have held the land in trust for all the children of the Testator."

In construing a will the function of the Court is to ascertain what is the meaning of the actual words and expressions used by the testator; prima facie his words should be given their ordinary meaning, but it may appear from a consideration of the will as a whole that he has used certain words in a peculiar sense, and if so, and if the words in question are not words to which the law has attached one definite meaning, then the words should be given the meaning which appears to have been put upon them by the testator in order that his intention may be carried out.

Prima facie the words " I leave in the charge of" do not import a transfer of ownership but suggest rather that the person in whose charge the property is left has been constituted caretaker or trustee for someone else. The same words were used also in Clause 1 of the Will, and I think it is not only legitimate but right for the Court to look at that clause in order to sep if it throws any light on the sense in which the testator used these words.

Clause 1 reads" I leave my house in the Horse Road in Ussher Town ... in the charge of Madame Amina, Meriam Ali and my son Mama Ali The said house is never to be sold but the rent received therefrom is to be divided equally between the said Madame Amina, Meriam Ali and my son Mama Ali" Here the second sentence makes it plain that the testator by the words " I leave ..... in the charge of" intended to give the property to the three persons named for their own use and benefit, and not as caretakers or trustees for someone else.

If in this clause 'were substituted the word" to )J for the words "in charge of", the meaning and effect of the clause would be unaltered.

When it is plain that the testator used these words in one part of his Will as importing the gift of a beneficial interest, lean see no reason for giving them a different meaning in the next succeeding clause, where the only difference is that he does not attempt to restrict the power of disposition of the property mentioned. It has not been suggested, nor is there any reason to suppose that Clause 2 was left incomplete; Clause 4 shows that the testator had his other children in mind and made provision for them, which renders it unlikely, to my mind, that by Clause 2 he intended to constitute Madame Amina, Meriam Ali and Mama Ali trustees for his children, but without mentioning them.

For these reasons I am of opinion that upon the true con­struction of the Will of the testator Madame Amina, Meriam AU and Mama Ali took the premises known as Ali's land behind the Mosque at Zongo as beneficial owners and not as trustees, and the decision of the learned Chief Justice on this point ought to be reversed.

This being so it becomes unnecessary to deal with 9 and 10 of grounds of appeal in which the Statutes of Limitation are set up, but I think it worth saying that in my opinion this Court should be slow to reverse a judgment on grounds which were not pleaded or

. argued in the Court below. In fact the only reference to the Statutes in the whole course of the proceedings was a statement by appellant's Counsel that they did not apply.

There was also a claim that the plaintiffs were entitled to the balance of the testator's money, dealt with by Clause 4. of the Will. and for an account. But no evidence was given that the testator left any money, or that, if he did, it had come to the hands of the appellant, and I am of opinion that the learned Chief Justice was right in ignoring this claim.

WEBB, C.]., SIERRA LEONE.

I concur.

STROTHER-STEWART, J.

I regret to have to differ from my two learned brothers. T t is one of the rules of construction of wilIs that where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary. It is also one of the rules of construction that words, in general, are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascertained.

In this case the Testator uses in Clauses 1 and· 2 of his wiII the words " in charge of ". The words in their legal, as well as in their ordinary and grammatical sense, do not import a beneficial devise.

  In Clause 1 of the Will they are followed by words which clearly show the conditions under which the charge of the property is to be exercised. In Clause 2 no directions are given. I am, therefore, of opinion, that the clause is inoperative, and agree with the learned Chief Justice in his judgment in the Court below, that there is a partial intestacy as far as the property purported to be devised in that portion of the will is concerned. It is of interest that the same construction was put on the clause by a former Chief Justice of this Colony, Brandford Griffith, when the same Will was before him in another matter.

The Testator may have been Inops consilii, but he uses the technical words .• I leave", .• I bequeath", and .. I appoint" in various clauses of his will, all of which are technical words, and, as used by him, are appropriate to the purposes of the clauses in which they are used. I am, therefore, all the more indisposed to construe the words .. in charge of", without other words, as a beneficial gift to the persons named in Clause 2.

I am of opinion that there is a partial intestacy so far as the property purported to be disposed of in Clause 2 of the will is concerned, and that the said property should go to the heirs, or next of kin, of the testator, except in so far as the Statute of Limitations may apply to them.

It appears to me that under the law of this Colony Plaintiff­Hespondent Abiba Ali is excluded under the Statute of Limitations, but that all the other Plaintiffs-Respondents together with the Defendant-Appellant are entitled to share in the property in respect of which there is a partial intestacy, each female receiving one portion, and each male two portions, in accordance with Mohamme­dan Law.

The appeal, should, therefore, in my opinion, he dismissed, except in so far as the share of Plaintiff-Respondent Ahiba Ali is concerned, and as Defendant-Appellant has not succeeded on the merits, he should pay the costs.

The following order was made :-

The appeal is allowed anc1 the judgment of the Court below is reversed in so far as it declared that the appellant is trustee of the lands known as Ali's land behind the Mosque at Zongo. The Respondent to pay the Appellant's costs in the Court below, and the costs at this appeal which are assessed at £48 11s. 6d. The court below to carry out.