Construction of Will-,-(a)
Devise of land " for the
term of her natural life" and
(b) destination of property
where devisee dies unmarried
" before attaining the age of
twenty-one years or marriage."
Held:. (a) The words
being repugnant were properly
rejected and the devise was a
devise in fee simple and (b)
devised property forms part
of devisee's estate. Appeal
allowed.
The facts are sufficiently set
out in the judgment. Case
referred to:-
Doe v. Stenlake, 104
E.R. p. 203.
H. J. L. Boston for
Defendant-Appellant.
E. Fashola Luke for
Plaintiff- Respondent.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST, GRAHAM PAUL,
C.J., SIERRA LEONE.
This matter comes before us on
appeal from a decision of Lane,
J. on proceedings by originating
summons to determine the
construction of clause 4 of the
'Will of .Tames Taylor who died
in 1901. That clause reads:-
"I give and devise all that lot
of land and premises known as "
'Tinubu House' situate in
Gloucester Street in Freetown
aforesaid " and numbered (400)
four hundred in the Register and
Plan of Town "Lots for Freetown
aforesaid unto and to the use of
Emma Tinubu " Taylor Cummings
her heirs and assigns for the
term of her natural life " but
in the event of the said Emma
Tinubu Taylor Cummings dying "
before attaining the age of
twenty-one years or marriage
then I devise " the said land
and premises unto and to the use
of my executors and " trustees
upon trust that they rent or
sell the said premises as in
their " opinion might seem fit
and the amount or proceeds so
obtained shall " be taken as
forming part of my personal
estate and be applied as "
directed in paragraph 22
hereto".
Emma Tinubu Taylor Cummings had
possession of Tinubu House until
her death in 1937 when she died
intestate, over twenty one
years of age and unmarried.
Letters of Administration of her
real and personal estate were
granted to Eustace Cummings, the
defendant, who, as her
administrator<>r, has been in
possession of Tinubu House and
has rented it out and collected
the rents. The plaintiff, the
widow of James Taylor and sole
surviving Executor under his
Will, by her counsel contended
in the Court below that, under
the proper construction of
clause 4, Tinubu House ought to
be treated as part of the
residue of James Taylor's
estate. The learned Judge in the
Court below upheld that
contention in his judgment but
in this Court the respondent's
counsel admitted that he could
not support the judgment of the
Court below.
The learned
trial Judge held that the words
" for the term of her natural
life" ought to be rejected and
that the proper construction of
the devise in clause 4 of the
~Will is that it was a gift in
fee simple to Emma provided that
if she died under the age of
twenty-one years or unmarried
not having disposed of the
property, the property was to go
to the use of the executors and
trustees upon trust to be rented
or sold as they might think fit,
the proceeds to be used as
directed in clause 22. He
further held that the word " or"
should be read disjundively and
that as Emma Cummings died
unmarried and without having
disposed of the property during
her lifetime the property vests
in the sole remaining executor
of the late James Taylor to be
used in the way directed.
In our
opinion the learned Judge was
right to reject the words " for
the term of her natural life" as
being repugnant. In Doe v.
Stenlake, 104 E R. p. 203
under a devise to one and her
heirs during their lives
it~ held that these latter words
were repugnant to the others,
and that the devises took an
estate of inheritance. Lord
Ellenborough, C.J. observed in
his judgment that" the words
"during their lives, after the
devise to the daughter and her "
heirs, is merely the expression
of a man ignorant of the manner
•. of describing how the parties
whom he meant to benefit would
enjoy the property; for whatever
estate of inheritance the heirs
., of his daughter might take,
they could in fact only enjoy
the .. benefit .of it for their
lives."
We further
agree with the learned Judge in
the Court below " t hat the
proper construction is that it
was a gift in fee simple " to
Emma." But we disagree with him
when he goes on to say that this
gift in fee simple was subject
to the proviso" that if she "
died under the age of twenty-one
years or unmarried not
having ,. disposed of the
property, the property was to go
to the executors " and trustees
upon trust .... as directed in
clause 22." That is expressly
the proviso which the learned
Judge set himself to construe
but that is not the proviso
expressed in the Will. The words
of the Will are" but in the
event of the said Emma Tinubu "
Taylor Cummings dying before
attaining the age of twenty-one
" years or marriage then I
devise the said land and
premises as directed in
paragraph 22 hereof."
There is
nothing unusual in a provision
of this kind in a Will. It is
quite a common provision in
dealing with a devise to a
female to refer to her majority
or marriage. The common sense
behind that common provision is
obvious. If she attains majority
she can look after her own
interests; if she is married
before her majority her husband
can look after her interests. N
either the English language nor
the judicial decisions justify
the construction which the
learned Judge has given to these
words which clearly mean that
the contingent devise over is
defeated whenever Emma attained
the age of twenty-one years or
married. She never married but
she did attain the age of
twenty-one years-and the devise
to her and her heirs and assigns
thereupon became indefeasible.
When she died the fee simple of
this property formed part of her
estate and went to the
administrator of her real and
personal estate who according to
the plaintiff's Own affidavit is
the defendant. or these reasons
the appeal is allowed; the
judgment of the Court below is
set aside altogether; the true
construction of the devise
in question is declared to be as
stated in this. judgment; and
the costs of both parties in the
Court below and in this Court as
between solicitor and client are
to be taxed and to be paid by
the plaintiff as the sole
surviving executor of the estate
of the lat.~ James Taylor out of
that estate.
