Rachel Edith Jones V. John Brown Nichols & Ors (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim by married woman as devisee and legatee under a will against Executors and Trustees thereof and her husband for execution of the trusts of such will, for administration. of the estate by the Court (if necessary), and for accounts and enquiries into unlawful expenditure of trust money. Counterclaim for possession of land and mesne profits.
Held : (i) The lands having been limited in trust for the wife in fee for her separate use the trustees must convey the legal estate according to her direction;
- The wife being a tenant in common in fee had unity of possession with the other tenants in common ;.
- Appeal therefore dismissed.
There is no need to set out the facts. S. J. Barlatt for Appellants.
E. F. Luke for Respondent.
On 16th May, 1938, the following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBB, C.J., SIERRA LEONE.
By the will of Josiah Byron Macaulay, deceased, a plot of land in Freetown was devised to his trustees ” upon trust for my children Joseph Festus, Caleb and Rachel their heirs and assigns as tenants in common “, and the will contained the following provisions :—
” I hereby direct that my said trustees shall during the minority of each of the devisees herein named rent the premises devised to each of them for the best rent obtainable and pay the Profits arising therefrom after deducting all expenses for reasonable repairs and improvements to the guardians of each of such devisees to be applied towards his or her maintenance education and support And I hereby further direct and declare that all the devises contained in this my will or which shall devolve upon any female shall be held and enjoyed by such female devisee as her sole and separate property independent of the debts engagements or liabilities of any husband.”
At the death of the testator in 1918 there was a partially Hingdon,
Petrides
completed building on the plot; the trustees procured funds,
& Webb,
completed the building and let it to tenants. In 1932 Rachel (the cm. respondent), who was thirteen years of age in 1918, went into possession of portion of the premises and since 1935 she has been
in receipt of the rents of the remainder. Dispute having arisen between her and the trustees she brought this action against them claiming (inter alia) a declaration that they were not entitled to reimburse themselves for any unauthorised outlay on the premises, a conveyance of her undivided share therein, an account of the rents and profits received by the trustees since the death of the testator and payment of her share of whatever should be found due upon taking the account. The trustees (the present appellants) pleaded that the rents collected by them had not yet been sufficient to discharge the liabilities incurred by them in the completion of the buildings and the maintenace and education of the beneficiaries, and they counterclaimed for possession of the premises and for mesne profits.
The learned Judge held that the appellants were not justified in completing the building on the plot devised to plaintiff and her brother and were not entitled to be reimbursed for the moneys expended thereon, at the same time he refused the respondent’s claim for an account of the rents and profits of the premises. So that in effect the appellants are in the position, at all events as against the respondent, of being able to set off the rents and profits which they have received against such expenditure. From these portions of the judgment no appeal has been taken.
The learned Judge decreed that the respondent should have a conveyance of her interest in the premises and he dismissed the counterclaim with costs. The appellants have appealed against this portion of the judgment.
So far as regards the claim for a conveyance to the respondent of her interest in the premises the law is thus stated in Williams Real Property 22nd Edition p. 320 : —” Not only the income, but also the corpus of any property, whether real or personal, might be limited to the separate use of a married woman. And in the year 1865 it was finally settled that a simple gift of real estate for a wife’s separate use, either with or without the intervention of trustees, was sufficient to give her the power to dispose by her
own act inter vivo., or by will, without the consent or concurrence of her husband, of the whole equitable estate so limited to her. The same rule had long been established with respect to personal estate. And where lands were limited on trust for a wife in fee, for her separate use, she had the right of every cestui que trust in similar case, to require her trustees to convey the legal estate therein according to her direction. (Appleton v. Rowley L.R. 8 Eq. at p. 142).” It is therefore clear that the decision of the learned Judge on this point was correct.
Coming now to the appellants’ counterclaim for possession, it is argued that the respondent had no right to take possession of more than her own share in the premises. But she and her co-beneficiaries are tenants in common in fee, and it is the nature of tenancy in common that tenants in common have a unity of possession. No doubt the co-beneficiaries have an equal right to possession, but there is no claim by them or on their behalf before the Court either for possession or for the shares of the rents and profits to which they are entitled. In the circumstances therefore, we are of opinion that the counterclaim was rightly dismissed.
We see no reason to vary the order as to costs made by the learned Judge. The appellants must pay to the respondent her taxed costs of this appeal.
In the result, therefore, the appeal is dismissed with costs.
