Garber v Savage, 1920-36 ALR S.L. 230

5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS GARBER v. SAVAGE and MACKEY Supreme Court (Tew, C.J.): April 11th, 1931 [ 1] Succession - administration of assets - payment of debts - intestate estates - administrator must obtain consent of those beneficially entitled, or court order, before selling real property to pay intestate deceased's debts: The Execution against Real Property Ordinance (cap. 61), s. 3, which provides that the real estate of any deceased person may be administered for the payment of his debts does not override the provisions of the Intestate Estates Ordinance (cap. 104), s. 24 and the administrator of an intestate estate wishing to sell land forming part of the estate to meet the deceased's debts, is not therefore relieved of his obligation to obtain first the consent of the persons beneficially entitled, or an order of court (page 231, lines 19-37). The plaintiff brought an action to set aside a deed of convey­ ance made between the first and second defendants. The first defendant was the administrator of an intestate estate in which the plaintiff had a beneficial interest. The deceased had left various debts which the first defendant decided to meet by selling land forming part of the estate. He sold the property to the second defendant without first obtaining either the consent of those beneficially interested in the estate, or an order of court. The plaintiff then brought the present proceedings contending that the deed of conveyance should be set aside since the first defendant had failed to obtain the consent to the sale of those beneficially interested in the property, or a court order, as required by the Intestate Estates Ordinance (cap. 104), s. 24. In reply, the first defendant contended that this section did not apply when an administrator sold property in order to pay the deceased's debts, since the right to sell in such circumstances was conferred by the Execution against Real Property Ordinance (cap. 61), s. 3, and that the conveyance should not therefore be set aside. The court gave judgment for the plaintiff. Legislation construed: Execution against Real Property Ordinance (Laws of Sierra Leone, 1925, cap. 61), s. 3: "When any person shall die seised of or entitled to any estate or interest in lands, tenements, hereditaments or other real estate, which he shall not by his last will have charged with, or devised subject to, or for the payment of, his debts, the same shall be assets to be admin­ istered for the payment of all just debts of such person." 230 GARBER v. SAVAGE, 192()-36 ALR S.L. 230 Intestate Estates Ordinance (Laws of Sierra Leone, 1925, cap. 104}, s. 24: The relevant terms of this section are set out at page 231, lines 12--16. TEW, C.J.: This action was brought to set aside a deed of conveyance made between the defendant Savage, as administrator of the estate of Ibrahim Garber, deceased, and the defendant Mackey, of the land at Canton Street, Freetown. No defence was delivered by Mackey and, as against him, the action was set down on motion for judgment. Section 24 of the Intestate Estates Ordinance (cap. 104) provides that: "No land passing under this Ordinance shall be sold by the Curator or any administrator without the consent of all persons beneficially interested, or the order of the Supreme Court or Judge thereof for that purpose first obtained." The defendant Savage denied that the land had been sold without the consent of the other beneficiaries and pleaded that he had sold the land in order to defray the debts of the intestate. I am satisfied that the defendant did not obtain the consent of all the beneficiaries, and it is not denied that he failed to obtain an order of the court. It was, however, argued on his behalf that by virtue of s. 3 of the Execution Against Real Property Ordinance (cap. 61), an Ordinance of a later date than the Intestate Estates Ordinance, the real estate of any deceased person may be administered for the payment of his debts, and that this provision overruled s. 24 of the latter Ordinance. In my opinion there is no substance in this argument. The sole purpose of the Execution Against Real Property Ordinance is to enable real property to be taken in execution in the same manner as personal property, and it cannot override the provisions of the Ordinance from which an administrator derives his authority. How s.3, which has nothing to do with execution, came to be inserted in this Ordinance, I cannot imagine. It cer­ tainly cannot relieve an administrator, who wishes to sell land for the payment of debts, from the obligation imposed on him by s.24 of the Intestate Estates Ordinance. The plaintiff must have judgment against both defendants. The deed of conveyance dated September 27th, 1929, and made between the two defendants is set aside. The plaintiff will have the costs of this action against both defendants and also, against 231 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS the defendant Mackey, the costs of the motion for judgment. Judgment for the plaintiff. 5 IN THE ESTATE OF PRATT (W.H.) (DECEASED), TURPIN v. JOHNSON 10 15 20 25 30 35 40 Supreme Court (Tew, C.J.): April 11th, 1931 [ 1] Land Law - contingent remainders - construction - presumption in favour of vested remainders - limitation read as contingent remainder only if clearly testator's intention: A limitation in a will should not be read as being a contingent remainder unless this clearly appears to be the testator's intention and if it admits of being considered as a vested remainder it will always be read as such; so when a devise is made to A for life and on his death to the heir male of his body, and in default of such heir male to the testator's own heir general, the remainder will vest in the person who is the testator's heir general at the date of the death of the testator; when A himself is such person, he will take an estate in fee.simple (page 235, line 36-page 236, line 7). [ 2] Land Law - contingent remainders - vesting - remainder to testator's heir general vests in person who is heir general at date of testator's death unless clearly intended by testator to be contingent remainder: See [1] above. [ 3] Succession - wills - construction - words of limitation - remainder to testator's heir general vests in person who is heir general at date of testator's death unless clearly intended by testator to be contingent remainder: See [ 1] above. The plaintiff applied to the Supreme Court for the construction of a will. The testator devised to his son, and heir-at-law, J.R. Pratt certain property "during his natural life and after his death I devise the same premises unto the heir male of his body and in default of such heir male to my own right heir general for ever." J.R. Pratt died intestate leaving a son, W.H. Pratt, Jr., who later died intestate and without issue, his mother being administratrix of his estate and the defendant in the present proceedings. The plaintiff, who was the grand-daughter of the testator by one of his daughters, made the present application asking the court to determine the nature of the estate transmitted to W.H. Pratt, Jr. on the death of J.R. Pratt, and to state who was entitled to the property in question on the death of W .H. Pratt, Jr. She contended that she herself was entitled to the property since J.R. Pratt took an estate tail with an executory devise of 232