R. H. Millar V. A. A. Porter (1939)
LawGlobal Hub Judgment Report – West African Court of Appeal
Interpretation of Will—Devise to children for life and to their respective dhildren in common—meaning of word ” respective “—Distribution per stirpes.
Ot a devise ” to Trustees for the use of sons and daughters for their lives and after the death of the survivor to the use of all their respective children as tenants in common.”
HELD : On death of survivor of children, their respective children take per stirpes and not per capita.
There is no need to set out the facts.
N. J. P. M. Boston for Appellant.
C. S. T. Edmundson for Respondent.
The following judgments were delivered :GRAHAM PAUL, J.
This appeal raises two very short points of interpretation of the Will of the deceased Arthur Thomas Porter of which the Defendant is the Trustee. The Plaintiff who is a grand-child of the deceased brought an action in the Supreme Court of the Colony of Sierra Leone by originating summons to determine whether under the Will of the deceased the property known as 11, Wilberforce Street, Freetown, fell to be divided among the grand-children of the testator per stirpes or per capita.
The Plaintiff’s contention is that the division should be per stirpes and that the Defendant for some time has been wrongly dividing the rents and profits of the property in question per capita. The originating summons accordingly contained a claim for a declaration that the Plaintiff was entitled to be paid out of shares at present or in future due to other grand-children such amounts as would be necessary to adjust accounts on the basis of a per stirpes division.
An agreed statement of facts was filed in the Court below with a copy of the Will of the deceased attached. Under that statement of facts it was agreed (para. 7) that there were only five persons beneficially interested in the property in question, namely :—
- The Plaintiff, only surviving child of Arthur Thomas Porter, a deceased son of the testator.
- Amy Margaret Pratt (nee Porter) the only surviving child of John Terry Porter a deceased son of the testator.
Porter, and Guy Hardesty Porter the surviving children
of Guy Hardesty Porter a deceased son of the testator.
The only question raised in the Court below was whether under the devise of the property in question the division among these five beneficiaries should be per stirpes or per capita.
The essential words of the devise are as follows :—
” I devise all that my hereditaments and premises, etc. unto my Trgstees for the use of all my sons and daughters for the term of their natural lives and after the death of the survivor of them to the use of all their respective children as tenants in common.”
The learned Judge in the Court below upheld the Plaintiff’s contention that the division among the grand-children must be per stirpes and not per capita and the consequential declagation claimed by the Plaintiff was granted. Against that decision the Plaintiff has appealed to this Court.
It is quite clear and not in dispute that the devise created in the testator’s children a joint tenancy with a jus accrescendi to the survivors and survivor.
The consequent position is very clearly expressed in Jarman on Wills (Vol. III pp. 1691-2) as follows :—” the whole subject of the devise remains undivided until the death of the survivor and then goes over in a mass. In this case there is but one period of distribution and presumably one class of objects who therefore prima facie take per capita.”
That passage from Jarman seems to me to cover the points in the present case subject to the question whether the use of the word ” respective ” in the phrase ” to the use of all their respective children ” ousts the prima facie presumption in favour bf per capita division. In my opinion it does so.
In his argument before this Court Counsel for the Appellant contended that the insertion of the word ” respective ” made no difference and that it should be taken pro non soripta in construing this clause of the Will. With that contention I am unable to agree. The word ” respective ” has a definite meaning in the English language and where it appears in a Will it must be given that meaning. That seems to me ordinary common sense but it is also a matter covered by authority.
The following cases :—
Arrow v. Mellish (63 E.R. 1102)
Davis v. Bennet (V.L.T. 815)
Sutcliffe v. Howard (38 L. J. Ch. 472)
Tamil v. Frampton (82 E.R. 840)
to my mind authoritatively decide that the word ” respective in such context means a per stirpes and not a per capita division and there is nothing to prevent a testator, if he so desires, giving a joint tenancy for their lives to his children and directing a per
stirpes division of the capital among his grand-children who may survive ” the one period of distribution ” namely the date of the death of the last survivor of the testator’s children. That in my opinion is what the testator has done in this case, and I see no reason why effect should not be given to the expressed intention of the testator.
As regards the second point which the Appellant’s counsel raised on the second ground of appeal I agree with Respondent’s Counsel that by •paragraph 7 of the agreed statement of facts this Court is precluded from considering on appeal whether any other person than those named in paragraph 7 may have some beneficial interest in this property. The judgment of the Court below is a decision inter panes and the Court below and this Court must accept the statement of facts agreed inter parks.
I may add however that if the matter had been open for consideration I could not accept the contention of Appellant’s Counsel that any share of the capital of this property vested in any of the testator’s children who died childless. The individual interest of each of the testator’s children lapsed immediately and completely on his or her death.
In my opinion this appeal should be dismissed with costs against the Appellant personally.
KINGDON, C.J., NIGERIA. I concur.
PETRIDES, C.J., GOLD COAST. I concur.
The following order was made.
The appeal is dismissed with costs to be taxed against the Appellant personally.
