Case stated by Supreme Court
exercising Appellate
jurisdiction.
Administratrix .med for debt of
deceased-consequent execution
against real property of
estate-Judgment Creditor cannot
attach 'interest in
property not vested in
Judgment Debtor letter's
of Administration at date of
action only vested deceased's
personal property in
Administratrix
The facts are stated in the
judgment.
Held: Court below was right in
finding for claimant.
E.
C.
QIl1'st
for Appellant.
R. E. Phipps
for Respondent.
The fol1owing joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, YATES,
ACTING C.J., GOLD COAST, AND
GRAHAM PAUL, J.
This matter came before the
Divisional Court (Aitken, J.) by
way of appeal from a decision of
the Police Magistrate, Accra.
The facts are quite short and
simple.
The plaintiff obtained a
judgment against the defendant
as administratrix of the estate
of Bismark Abbey-Quartey
(deceased). The judgment was for
payment of a debt due to 'the
plaintiff by the deceased. The
plaintiff issued execution under
his judgment and certain real
property of the deceased debtor
was attached thereunder.
An Interpleader Summons was
issued by the claimant in regard
to the real property attached.
The Police Magistrate decided on
the Interpleader Summons in
favour of the claimant, and the-
execution creditor appealed to
the Divisional Court which has
referred to this Court for
consideration a que3tioD of law
involved in the appeal, namely,
whether, under a judgment
against this administratrix only
for a debt due by the deceased,
execution can issue against the
real estate of the deceased.
Counsel for the judgment
creditor argued before this
Court that under section 16 of
the Supreme Court Ordinance the
Probate law and practice for the
time being in force in England
applied in this Colony, and that
under such law and practice, at
the date when the Letters of
Administration in this case were
granted, the administratrix
could have applied for and
obtained a grant of Letters of
Administration covering the real
as well as the personal estate
of the deceased. However that
may be, the Letters of
Administration in this case were
in fact granted only to the
personal estate of the deceased.
This is in accordance with the
form of grant given in the
Schedule to the Supreme Court
Ordinance. There is no form
provided for a grant dealing
with real estate.
By the terms of her Letters of
Administration the
administratrix as such is the
representative of the deceased
only so far as his personal
estate is concerned. She was not
sued in any other capacity than
in that of administratrix.
Counsel for the appellant urged
that the terms of the Supreme
Court Ordinance Schedule II
Order 44 rule 8 were
sufficiently general to justify
execution under the judgment
obtained against the
administratrix by attachment and
sale of the real property of the
deceased, but I am unable to
accept that contention. It is
impossible to read the whole of
rule 8 without realising that it
is intended to apply, and does
apply, only to property which
the representative of the
deceased has a right to take
possession of, and duly apply.
A judgment creditor cannot take
by attachment in execution any
higher or other right title or
interest in property than is in
the judgment debtor. The
judgment debtor here is the
administratrix and she has, as
such, under the Letters of
Administration granted to her,
no right title or interest, to
or in, the real property of the
deceased. It follows therefore
that there is in her no such
right title or interest in the
real property of the deceased
attachable under a judgment
against her as administratrix.
The question whether or not the
Supreme Court can now, by virtue
of section 16 of the Supreme
Court Ordinance and of recent
English legislation, grant
Probate and Letters of
Administration covering real
estate does not arise in this
appeal but it ma~ˇ be tested by
appropriate proceedings. If such
power does exist in the Supreme
Court it is clear that
considerable amendment of the
Rules of Court and forms would
be necessary in order to bring
them into line with the English
law and practice in Probate
matters.
In our opinion the learned Judge
was right on the point. he
raised at the outset of the
appeal before him so far as this
particular administratrix and
her particular letters of
Administration are concerned;
he was right in dismissing the
appeal before him on that point;
and we should confirm his order
dismissing the appeal.
Kingdon, C.J., Yates, Ag. C.J.
Dnd Graham Paul, .J.
