Randall v Official Admor, 1950-56 ALR S.L. 411

RANDALL v. OFFICIAL ADMOR., 1950-56 ALR S.L. 411 RANDALL v. OFFICIAL ADMINISTRATOR SuPREME CoURT (Boston, Ag.J.): August 23rd, 1955 (Civil Case No. 234/54) s.c.

[1] Succession-executors and administrators-appointment of administra tor-court must appoint administrator in certain circumstances choice of administrator at court's discretion: The court must appoint an administrator in certain circumstances, for instance, where the person appointed executor dies before the testator, or where the executor dies before completing the administration of the estate; and in such instances the choice of administrator is left to the exercise of the court's discretion, according to its practice, no person having an enforceable legal right to preference (page 420, lines

[2] Succession-Official Administrator-grants of administration-juris diction confined strictly to statutory powers and duties-once grant obtained, must properly administer estate and preserve assets: The jurisdiction and powers of the Official Administrator in performing his primary duties are limited by the terms of the Administration of Estates Ordinance (cap. 2); but once he has rightly assumed juris diction by obtaining a grant of letters of administration, he must do everything that is necessary for the proper administration of the estate and the preservation of its assets (page 418, line 37-page 419 line 11; page 419, lines 27-31).

[3] Succession-probate and letters of administration-persons entitled to letters of administration-court to consider relative fitness of claimants if interests equal: Where there are several claimants for a grant of letters of administration and their interests are the same, the court should consider the relative fitness of the claimants; and in exercising its discretion and making a selection it will be loath to entrust the administration of the estate into the hands of one who is not shown to be capable of carrying out the obligations involved, either through inefficiency or malevolence or both (page 421, lines 12-17; page 423, lines 3-10). [ 4] Succession-probate and letters of administration-persons entitled to letters of administration-residuary legatee and his legal representa tive equally entitled to administration with will annexed: Where a residuary legatee survives the testator and has a beneficial interest in the estate, his legal representative has the same right to a grant of letters of administration with will annexed as the residuary legatee himself (page 421, lines 8-10).

[5] Succession-probate and letters of administration-persons entitled to letters of administration-those entitled to distribution of estate in order of priority of interests-residuary legatee or devisee in trust normally preferred to testator's next-of-kin for grant with will annexed: In exercising its discretion to choose whom to appoint as

so

so

administrator when an executor fails to represent the testator, the court will follow the principle that the right of administration should follow the right of interest in the estate; and therefore in ordinary practice the court will, in the absence of special circumstances, prefer to grant letters of administration with will annexed to a residuary legatee or devisee in trust rather than the testator's next-of-kin (page 420, line 37-page 421, line 6).

[6] Succession-wills-construction-words denoting residuary gift-no particular mode of expression necessary to constitute residuary legatee-sufficient that testator's intention expressed plainly: No particular mode of expression is necessary to constitute a person a residuary legatee: if the intention of the testator is plainly expressed in the will, that is sufficient for the surplus of the estate, after pay ment of debts and legacies, to be taken by the person there designated (page 415, lines 6-10). The plaintiff applied for a grant of letters of administration with will annexed in respect of her father's estate. The plaintiff's father died, and in his will named his wife and six children as residuary legatees. He also directed his executors to sell certain real properties and use the proceeds to pay certain expenses and legacies, the balance to be divided equally among the residuary legatees. He named his wife, a son and a daughter as executrices and executor. The wife and daughter were granted probate of the will, and power was reserved to the son to apply on attaining his majority. The executrices died without fully com pleting administration of the estate, and the executor did not obtain a grant of probate before his death. The plaintiff is the sole surviv ing residuary legatee. The present defendant, in his capacity as Official Administrator, applied for a grant of letters of administration with will annexed, and was opposed by the plaintiff. The Supreme Court (Boston, Ag.J.) held that the defendant had no statutory power to apply for such a grant as Official Administrator in the circumstances of the case, there being a next-of-kin (the present plaintiff) who could apply, though that would not preclude any claim he might have as legal representative of any of the residuary legatees. These proceedings are reported in 1950-56 ALR S.L.

351. The plaintiff instituted the present proceedings on her own account as a residuary legatee and next-of-kin of the testator and as legal representative of her mother and one of her sisters. The defendant also claimed entitlement to a grant as legal representative of three other residuary legatees. The Supreme Court considered to whom a grant of letters of

J RANDALL v. OFFICIAL ADMOR., 1950-56 ALR S.L. 411 s.c. administration should be made, the plaintiff or the defendant, in the circumstances of the case. Cases referred to:

(1) Atkinson v. Bernard (1815), 2 Phillim. 316; 161 E.R. 1156.

(2) Dampier v. Colson (1812), 2 Phillim. 54; 161 E.R. 1076.

(3) In re Ewing (1881), 6 P.D. 19; 44 L.T. 278.

(4) Mercer v. Morland (1758), 2 Lee 499; 161 E.R. 418.

(5) Official Admor. v. Randall, 1950-56 ALR S.L. 351, dicta of Boston, Ag.J. considered.

(6) R. v. Bettesworth (1733), 2 Stra. 956; 93 E.R. 966.

(7) Warwick v. Grevill (1809), 1 Phillim. 125; 161 E.R. 934, applied.

(8) Wetdrill v. Wright (1814), 2 Phillim. 243; 161 E.R. 1132, applied.

(9) Williams v. Wilkins (1812), 2 Phillim. 100; 161 E.R. 1090. Legislation construed:

Administration of Estates Ordinance (Laws of Sierra Leone, 1946, cap. 2), 20 s.8(1): The relevant terms of this sub-section are set out at page 419, lines

s.15: The relevant terms of this section are set out at page 419, lines 19-22. Courts Ordinance (Laws of Sierra Leone, 1946, cap. 50), s.38: 25 The relevant terms of this section are set out at page 420, lines 21-24. R.W. Beoku-Betts for the plaintiff; C.B. Rogers-Wright for the defendant. BOSTON, Ag.J.: In this action, the plaintiff, Marian Randall, is asking for a grant of letters of administration (with the will annexed) of the estate and effects of J abez Benjamin Luke (deceased). She claims to be

the only surviving daughter and one of the residuary legatees and 35 devisees entitled to share in the said estate. She also claims to be a representative of the estates of Sarian Virginia Luke (deceased) and J emima Lucretia Luke (deceased), both of whom were also residuary legatees and residuary devisees under the will of the said Jabez Benjamin Luke (hereinafter referred to as "the testator"). 40 The testator died on April 9th, 1919, leaving a will dated March

THE AFRICAN l.AW REPORTS 21st, 1914 and a codicil dated January 11th, 1916, in which he appointed Sarian Virginia Luke (deceased), Sarah Ann Spaine (deceased) and Dr. Benjamin Fashole Luke (deceased) his executrices and executor. The plaintiff states that the will was proved by the 5 said Sarian Virginia Luke and Sarah Ann Spaine but that both of them died before the estate was completely administered and there are residuary legacies and residuary devises left unadministered. The defendant, the Official Administrator, states that he is the representative of the estates of Hannah Ransoline Benka-Coker 10 (deceased), Jabez Benjamin Fashole Luke (deceased) and Josephine Beatrice Yomie Taylor (deceased), all devisees and legatees under the will of the testator. He states that there are no other surviving residuary legatees and devisees under the said will, and that as a matter of fact the estate of the testator has been fully administered. 15 He states in the alternative that if administration de bonis non should be granted in the testator· s estate, the grant should be made to him as representative of the estates named and not to the plaintiff, who, he states, is not a suitable person to receive such a grant. The plaintiff in her reply states that in a former action in the Supreme 20 Court between the same parties (see Official Admo-r. v. Randall (6), 1950-56 ALR S.L. at 358) I held that the application of the Official Administrator to administer the estate of J abez Benjamin Luke (deceased) "was improperly brought before the court. The Official Administrator, as such, cannot make such an application ...... 25 The defendant in his defence stated that the estate of the testator has been fully administered and there are no residuary legacies and devises under his will. This the plaintiff denies. If the defendant succeeds in his contention, that will be an end of the matter. I will therefore deal with this point first. 30 The testator was survived by his widow, Sarian Virginia Luke, who died on September 12th, 1949 intestate, and six children, namely, Sarah Anne Spaine (deceased), Jemima Lucretia Luke (deceased), Hannah Ransoline Benka-Coker (deceased), the plaintiff, Jabez Benjamin Fashole Luke (deceased) and Josephine Yomie 35 Taylor (deceased). In para. 15 of the will of the testator he directed his trustees to sell certain real properties therein named "and all other real and personal property not herein devised and bequeathed by me·'• and from the proceeds arising therefrom to pay his funeral and 40 testamentary expenses, just debts and some legacies, and to give the balance, if any, to his wife and all his children to be divided

J RANDALL v. OFFIClAL ADMOR., 1950-56 ALR S.L. 411 s.c. between them equally. Apart from the properties named in the will there are, in fact, some other properties not named which passed under that devise. It is admitted on both sides that all these properties have not been sold. Under the will all these properties should be sold, certain payments made and the balance distributed 5 among the testator's widow and children. No particular mode of expression is necessary to constitute a residuary legatee. It is sufficient, if the intention of the testator be plainly expressed in the will, that the surplus of his estate, after payment of debts and legacies, shall be taken by a person there designated. I hold that 10 the surplus of the proceeds of sale of the real and personal properties directed to be sold in the will to be distributed among the testator's widow and children is a residuary bequest, and that each of them is a residuary legatee. As the sale has not yet taken place and no distribution made, the estate has not been wholly administered with 1.5 reference at least to the residuary bequests. By para. 6 of the will, two properties, one in Regent Road and the other in Circular Road, were directed to be sold by the trustees after the death of the testator's widow and the proceeds divided equally between his six children. The widow died in 1949 and the 20 properties have not yet been sold. To that extent also, the estate has not yet been fully administered. From the ordinary interpretation of the devises and bequests, it is clear that there are residuary bequests in the will, and from the evidence the estate has not been completely administered. In 25 addition the defendant, by his conduct, is virtually precluded from raising this point. In an originating summons which the defendant took out in 1953 (Civil Case No. 486/53) for a determination of the question whether he as Official Administrator should administer the estate of the testator or whether the plaintiff should do so, he 30 stated in para. 4 of the affidavit £led in support of the summons as follows: "I am also informed by the said Salako Amborsius Benka-Coker, and I verily believe, that the said Jabez Benjamin Fashole Lawrence Luke, the executor for whom powers were reserved 35 to make a like grant, died at Freetown, testate, without sealing a grant to the estate of the said Jabez Benjamin Luke, deceased, and that the estate of the said J abez Benjamin Luke, deceased (hereinafter referred to as the 'parent estate') has not been completely administered." 40 Before this action commenced the defendant entered a caveat

in the Master's office in the estate of Jabez Benjamin Luke (deceased). The plaintiff, through the Registrar, warned the defendant to enter an appearance to the caveat and to set forth his interest. In his appearance entered on June 2nd, 1954, the defendant, by his solicitor, 5 stated that he was the representative of the estates of Hannah Ransoline Benka-Coker and Jabez Benjamin Fashole Lawrence Luke (both deceased) who were legatees and devisees and residuary lega tees and devisees under the will of ]abez Benjamin Luke (deceased). The defendant has not attempted to explain these declarations lO which are quite the opposite to the position he now takes up. One of the witnesses for the defendant, Mr. S.A. Benka-Coker, said in evidence that there was a family arrangement between the mother and children, that the properties directed in the will to be sold should not be sold, but should be rented and enjoyed by all 15 of them as tenants in common. If there was such an arrangement at all, there is no evidence that it was in writing. In fact Mr. Benka-Coker said he only heard about it-it was a matter of hearsay. I do not attach much importance to this piece of evidence which is sought to render nugatory the express direction of the testator as 20 to the manner of distribution of his property. It is true the houses have not been sold since the death of the testator, but who were the trustees responsible for the sale? They were the widow and one of the children, Sarah Anne Spaine. As these properties were yielding rent, they might have thought that such rents could 25 conveniently pay for the education and maintenance of the children. The widow had real properties devised to her separately which were also yielding rent. The court cannot assume that the widow and children deliberately decided to flout the express direction of the testator. Delaying the sale does not mean deciding against it. Apart 30 from all that, the plaintiff, who is one of the children and one of the parties to the supposed agreement has said in evidence that no such agreement was made and no such understanding was arrived at. In fact, at the time when this supposed agreement is alleged to have been made she was then an infant and there is no evidence 35 that she ever ratified it. She says the trustees did not carry out the directions of the testator as to the sale of the properties under para. 15 of the will, and, as regards the properties devised under para. 6, there was no trustee capable of carrying out the directions of the testator as to the sale of the properties for, as they were to have 40 been sold after the death of the widow, on her death in 1949 there was no proving executor and trustee to effect the sale as the other

RANDALL v. OFFICIAL ADMOR., 1950-56 ALR S.L. 411 s.c. proving executor and trustee, Sarah Ann Spaine, had predeceased her. Taking all these facts into consideration, I am clearly of the opinion that there are residuary bequests in the will of the testator, that the plaintiff and those whose estates she represents are residuary 5 legatees, that those whose estates the defendant represents were also residuary legatees, and that the estate of the testator has not been completely administered. The next point I would refer to is the contention by the plaintiff's solicitor that the defendant should not be granted admini- 10 stration cum testamento annexo, as he is debarred from so applying for such a grant by the ruling in the previous action (Official Admor. v. Randall (6)), in which he as plaintiff applied for such a grant and the court refused his application. In November 1953, the defendant as Official Administrator 15 applied to the court by originating summons for the determination of the question whether he or the present plaintiff should be granted administration of the estate of the testator. In his affidavit in support of the application he stated that he was informed by S.A. Benka-Coker that the testator made a will, that the executors who 20 took probate had all died without completing the administration of the estate, and he was asking the court to say whether he, as Official Administrator merely, or the plaintiff here, as residuary legatee and devisee and next-of-kin of the testator, should complete the administration of the estate. The court then held that the defendant here, 25 as Official Administrator, could not apply for a grant when there was a next-of-kin of the testator. In the course of my judgment I said (1950-56 ALR S.L. at 355): "The plaintiff took out this summons as Official Administrator, and in his argument before this court he stated that he had no 30 interest in the matter one way or the other except as the Official Administrator who has been moved to apply for the grant of administration with the will annexed, as from information at his disposal that course would serve the ends of justice." Later on (ibid., at 356) I stated: 35 "I hold that the plaintiff has no right under the Ordinance to make this application, nor will the court grant him an order to administer the parent estate in his capacity as Official Admini strator." Further on I continued (ibid., at 356) : 40 "Ordinarily in probate practice, when the chain of executors