Julia Elizabeth Taylor V. Eustace Taylor Cummings (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Construction of fill—(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 James 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 hereof “.
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, 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 disiunctively 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 he 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 KR. p. 203 under a devise to one and her heirs during their lives it iits 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 ” that 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. Ittbeth It is quite a common provision in dealing with a devise to a female Taylor to refer to her majority or marriage. The common sense behind E
us
that common provision is obvious. If she attains majority she `Naylorayi, can look after her own interests; if she is married before her Cummings. majority her husband can look after her interests. Neither the Kingdon English language nor the judicial decisions justify the construction petride, which the learned Judge has given to these words which clearly and
mean that the contingent devise over is defeated whenever Emma Graham Paul 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.
For 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 late James Taylor out of that estate.
