Case stated by Divisional Court.
ection
47 of Marriage Ordinance
(Gold Coast) does not vest real
property in per.wn granted
Letter.~ of Administration Real
property descends, as to
two-thirds, according to Statute
of Distribution, and as to
remaining third according to N
alive Law and Custom.
The facts are sufficiently set
out in the judgment.
C. S. Acolatse
for Appellant. K. A. Bossman
for Respondent.
The following judgment was
delivered:WEBBER, C.J., SIERRA
LEONE.
This is a case reserved for the
consideration by the Court of
Appeal on two questions of law
which the trial Judge states
arose in an administration suit,
namely:-
(1) Has the Supreme Court of the
Gold Coast Colony any power to
grant Letters of Administration
to administer anything but the
personal estate of a deceased
intestate?
(2) Assuming that the deceased
in this case was entitled, at
the time of his death, to any
real estate of which he might
have disposed by Will, will any
share of such real estate, and
if so what share, vest in the
person to whom Letters of
Administration are granted in
his or her representative
capacity?
The facts are fully set out in
the judgment of the learned
trial Judge and may be briefly
recapitulated as follows:-
The late Albert Fui Gorleku died
on the 14t}J. October, 1929,
intestate, leaving- his lawfully
married wife and a daughter. On
his death his wife, the present
plaintiff Victoria Ama Gorleku',
applied for Letters of
Administration and Notice of
Opposition was entered by George
Damisah Gorleku, an uncle of the
deceased.
Then. followed the
administration suit, the
plaintiff being the WIdow
Victoria Ama Gorleku, the
applicant, and the defendant
being George Darnisah Gorleku,
the caveator.
Victoria Gorleku v. George
Gorleku.
It was contended by counsel for
the plaintiff in the Court
below, citing
Odon/wr v. A.koshia,
Full Court Reports 1926-29 at
page ~22 and
Randolph v. Hammond
dated 2/10/1933 (not yet
reported), that the Court could
only grant Letters of
Administration to administer
personal estate, and by counsel
for the caveator, on the
authority of the case
"In re
James Hagan " deceased",
Sarbah's Fanti Law Report page
92, that the grant of Letters of
Administration would enable the
grantee to deal with any
individual property the deceased
owned in land and house.
The learned trial Judge ordered
that Letters of Administration
of the personal estate of the
deceased be granted to Victoria
Ama Gorleku subject to the
opinion of the 'West African
Court of App~al on the questions
of law stated
supra.
The answer to these questions to
a great extent depend upon the
true construction of section 47
of the Marriags rdinance, the
material part of wb.ich reads as
follows:-
"\Vhere any person who is
subject to native law or "custom
contracts a marriage, whether
within or "without the Colony,
in accordance with the 'I
provisions of this Ordinance or
of any other enact"ment
relating to marriage, or has
contracted a "marriage prior to
the passing of this Ordinance,
"which marriage is validated
hereby, and !!uch " person dies
intestate on or after the 15th
February, " 1909, leaving a
widow or husband or any issue of
" such marriage;
" And also where any person who
is issue of any such "marriage
dies intestate on or after the
said 15th "February, 1909, the
personal property of such "
intestate, and also any real
property of, which the " said
intestate might have disposed by
will, shall "be distributed or
descend in manner followiDg,
"viz:-'
.
"Two-thirds in accordance with
the provisions of " the law of
England relating to the
distribution " of the personal
estate of intestates in force on
"the 19th November, 1884, any
native law or " custom to the
contrary notwithstanding; and "
one-third ,in accordance with
the provisions of "the native
customary law which would have "
obtained if such person had not
been married " under this
Ordinance ".
This section is an amendment of
section 39 of the 1903 Ordinance
the material part of which reads
as follows:-
" The personal property of such
intestate, and also any "real
property of which the said
intestate might "have disposed
by will, shall be distributed in
"accordance with the
provisions.of the Law of
Victoria Gorleku
v.
George Gorleku
Webb9r, C.J.
83
Victoria Gorleku
v.
George Gorleku
Webber C.J.
Victor£a Gorleku v. George
Gorleku.
" England relating to the
distribution of the personal "
estates of intestates any native
law or custom to the " contrary
notwithstanding".
The differences of the two
sections are these:-
1. The amending section adds the
words " or descend " after the
word "distributed". The reason
is this-the section deals with
both" real" and" personal"
property, and as only personal
property can be distributed it
was necessary to add as to "
real" property what was to
happen when the owner died
intestate. It is the old feudal
rule of descent which, slightly
modified from time to time,
continued in force in England
until the Land Trantlfer Act
came into operation on 1st
January, 1898. By this rule "
real" property descended to the
heir when the owner died
intestate while the " personal"
property was distributed amongst
the next- of fin by an
administrator appointed for that
purpose (Williams on Real
Property p. 11, 9th Edition).
By the Land Transfer Act the
whole of the real estate, other
than copyholds and customary
freeholds, vested in the
administrator.
As this Act is not applicable in
this Colony, the rule of descent
w'hich was in force in England
up to 1928 was intended to be in
force here. As however section
39 of the Marriage Ordinance,
1903, dealt with both real and
personal properties, if they
were both capable of
distribution, the ruling in the
case In re James Hagan
deceased, namely that on the
death of an intestate all the
deceased's property was vested
in the administrator for purpose
of distribution, was to be
expected. This ruling, owing to
the omission of the words " or
descend" in the Marriage
Ordinance, 1903, had the same
effect as if the Land Transfer
Act applied locally.
In 1909 when the amended
Marriage Ordinance was enacted
this omission was put right and
the rule of descent was
enunciated for the first time in
a local Ordinance, namely "In
intestacy" realty descends to
the heir or those entitled
thereto and " personalty" vests
in the administrator for
distribution.
2. The other difference in the
amended Ordinance states how the
real and personal property are
to be "distributed" in the case
of personal and to " descend "
in the case of real property,
namely two-thirds in accordance
with the provisions of the Law
of England relating to the
distribution of the " personal"
estate of intestates in force on
the 19th November, 1884, any
native law or custom to the
contrary notwithstanding, and
one-third in accordance with the
provisions of the native
customary law· which would have
obtained if such person had not
been married under the Ordinance
so that in the case of the real
estate the property descends
automatically to those entitled
to it in the proportion set out
in the Ordinance.
Victoria Gorleku
'P.
George Gorleku.
In the case of
Odonkor
4"
Sackey
'P.
Akoshia
the plaintills claimed a
declaration that they were,
under a conveyance executed by
one Freda Winifred Ofosu Quartey,
the widow of Ofosu Quartey and
administratrix of his estate,
joint owner of certain lands
which were formerly the property
of her deceased husband. The
Full Court held that Mrs. Ofosu
Quartey passed to David Quartey
her interest in the premises,
and that they, the plaintiffs,
were entitled to the declaration
asked for as to their, one-third
share in the said premises.
In the head note of the case it
appears that the Full Court held
that under section 47 of the
Marriag-e Ordinance, ··1909,
two-thirds of the personal and
real property of the intestate
vested in the administratrix for
the purpose of distribution.
Such a finding, if it was made,
can only be regarded as an
obiter dict,,!,m
since the only question before
the Court was whether the native
heir was entitled to one-third
by descent, and for reasons
already stated I am unable to
agree with it.
I entirely concur
with
the
opinion
of the
learned triul
Judge that the proper
interpretation
of
section 47' of the Marriage
Ordinance is as stated by him "
where a person who is subject.
to " native law or custom has
contracted a marriage in
accordance "with the Ordinance
and dies intestate
leaving
a widl>w or "husband or any
issue of such marriage him or
her suniving " then
" (a)
Two-thirds of the personal
property of such intet>tate "
shall be distributed in
accordance with the provisions
ot the :: Statut? of
,Distribution 22 ~ 23 Ca.r.
II. C. 10 and the remaining
one-thud In accordance WIth
native customary law.
" (b)
The real property of which the
intestate might have "disposed
by will shall descend, as to
two-thirds thereof as " though
it were personalty to which the
Statute of Distribu'tioll "
applies and as to one-third in
accordance with native customary
" law".
For these reasons I think that
both questions submitted should
be answered in the negative--in
other words that the grant of
Letters of Administration
applies to personalty only and
that no real property vests in
the person to whom Letters are
granted.
DEANE, C.J., GOLD COAST'.
I concur.
KINGDON, C.J., NIGERIA.
I concur.
V iotoria G orleku
v.
George Gorleku
Webber, O.J.
85
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