Sawyerr v Williams (CIV APP 5 of 1973) [1973] SLCA 3 (3 April 1973)

SECTION 36 SA WYERR v. WILLIAMS, 1972-73 ALR S.L. 291 C.A. estate and on such names being certified to him by the Kroo Tribal Headman shall pay the residue to the person or persons so named. In the circumstances, the appeal is bound to succeed and it succeeds accordingly. This court orders that the case be remitted 5 to the lower court for retrial. Appeal allowed, new trial ordered. SAWYERR v. WILLIAMS Court of Appeal (Percy Davies and Tejan, JJ. A. and Rowland Harding, J.): April 3rd, 1973 (Civil App. No. 5/73) 10 [ 1] Succession-intestate succession-order of succession-children of de· 15 ceased brothers and sisters of intestate under Administration of Estates Act (cap. 45), Second Schedule, rr. 6(2) and 8 take per stirpes-right to claim does not extend to grandchildren: Under the Second Schedule to the Administration of Estates Act (cap. 45) rr. 6(2) and 8, the children of deceased brothers and sisters of an intestate deceased may stand in loco parentis and claim a share of the intestate's estate, taking per stirpes, 20 but the rule must be interpreted strictly as applying only to children and does not extend the right to claim to grandchildren (page 295, lines 12....,.. 14, lines 16-25). The appellant brought an action against the respondent in the High Court claiming a share in the estate of an intestate as one of 25 the next of kin. The respondent was the sister of the intestate and letters of administration were granted to her. The appellant was the grand­ son of one of the sisters of the intestate, the sister having pre- deceased the intestate, and the only other surviving relative. 30 The appellant brought the present proceedings claiming one half of the estate of the intestate. The High Court (During, J.) dismissed his claim on the ground that the Second Schedule to the Administration of Estates Act (cap. 45), r.6 limited the right to claim to children of the deceased's brothers and sisters and not 35 grandchildren. On appeal the appellant contended that the Second Schedule to the Administration of Estates Act, r.6, by allowing children of deceased brothers or sisters to share in the estate of a deceased intestate "in loco parentis," included within the latter phrase 40 those persons who may represent acestors and that the trial judge 291 THE AFRICAN LAW REPORTS had failed to make the distinction between next of kin simpliciter and next of kin under the Schedule of Distribution to the Admini­ stration of Estates Act. It was contended that he was therefore wrong in holding that the right to claim was limited to children 5 of deceased brothers and sisters of an intestate and did not extend to grandchildren. The respondent contended that the words "child or issue" were used throughout the Schedule, and that when the Statute was being interpreted these words should be given their ordinary mean- 10 ing, so excluding the grandchild of the deceased's sister. 15 20 The appeal was dismissed on the ground that the right to claim did not extend to grandchildren. Cases referred to: (1) Avison v. Simpson (1859), Johns. 43; 70 E.R. 332. (2) Caldicot v. Smith (1683), 2 Show. K.B. 284; 89 E.R. 943, applied. (3) Caller v. Caller, [1968] P. 39; [1966] 2 All E.R. 754. (4) Elmsley v. Young (1835), 2 My. & K. 780; 39 E.R. 1142. (5) Re Gray's Settlement, Akers v. Sears, [1896] 2 Ch. 802; (1896), 75 L.T. 407. (6) Re Jackson, Holliday v. Jackson (1943), 170 L.T. 244; 60 T.L.R. 157. (7) Re Kirk, Nicholson v. Kirk (1885), 52 L.T. 346. 25 (8) Loring v. Thomas (1861), 1 Drew. & Sm. 497; 62 E.R. 469. (9) Re Lucas's Will (1881), 17 Ch. D. 788. 30 35 40 (10) Re Palmer (1961), 1 S.L.L.R. 71. (11) Phillips v. Garth (1790), 3 Bro. C.C. 64; 29 E.R. 410. (12) Re Ross's Trusts (1871), L.R. 13 Eq. 286; 25 L. T. 817, applied. (13) Re Speakman (1876), 4 Ch. D. 620; 35 L.T. 731. (14) Withy v. Mangles (1843), 10 Cl. & Fin. 22; 8 E.R. 724. Legislation construed: Administration of Estates Act (Laws of Sierra Leone, 1960, cap. 45), Second Schedule, r.6: "(1) If a man die leaving no widow, child, issue or father, the mother, brothers and sisters will take in equal shares. Brothers and sisters of the half-blood sharing equally with brothers and sisters of the full-blood. (2) If any brother or sister shall have died in the life-time of the intestate, leaving children, such children shall stand in loco parentis, provided the mother or any brother or sister be living." 292 SAWYERR u. WILLIAMS, 1972-73 ALR S.L. 291 C.A. r.S: "If there be no mother, the brothers and sisters take equally, the children of such brothers and sisters as may be dead standing in loco parentis." C.N. Rogers-Wright for the appellant; Stronge for the respondent. PERCY DAVIES, J.A., delivering the judgment of the court: This is an appeal by the plaintiff in the lower court from the judgment of During, J. in favour of the defendant with costs. Laura Inajogor Coker (hereinafter referred to as "the intestate") died at Freetown on September 8th, 1958, possessed of, amongst other things, house and land at 45 Waterloo Street, Freetown in the Western Area of Sierra Leone, valued by a licensed auctioneer and estate agent at Le5,000. The intestate is survived by a lawful sister, Sarah Tenneh Williams and no child. Letters of administra­ tion of the estate and effects of the intestate were granted to Sarah Tenneh Williams on September 23rd, 1966. I shall here­ inafter refer to Sarah Tenneh Williams as "the administratrix". Before the death of the intestate she had two lawful sisters, namely, the administratrix who is without a child, and Kate Frazer who predeceased the intestate and was survived by Regina Modupe Sawyerr, her lawful daughter, who died on July 19th, 1958, and is survived by Ralph W. Ayodele Sawyerr, the plaintiff/appellant in this appeal. The plaintiff/appellant is claiming a share in the estate of the intestate as one of the next-of-kin, the other being the administratrix. It is this claim of the plaintiff/appellant that During, J. has dismissed the costs and from which he was appealed to this court on two grounds, viz: 1. That the learned trial judge erred in law in that notwithstand­ ing the existence of rr.6(1), 6(2) and 8 of the Schedule of Distri­ bution to the Administration of Estates Act (cap. 45), he was able to restrict next-of-kin exclusively to what he defined as "next-of­ kin," that is next in degree. 2. That the learned trial judge manifestly erred in law in holding that r.6(2) "limits the right to claim ... to children ... and not grandchildren . . . " and further that "only children could stand in loco parentis and not grandchildren under the distribution rules." Mr. Rogers-Wright for the appellant spent some considerable time expounding on the philosophy of "in loco parentis." He said that "in loco parentis" in its original Latin means "in place of parent'' but in law it means those persons who may represent ancestors. He said the learned trial judge failed in his judgment to 293 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS make a distinction between next-of-kin simpliciter and next-of­ kin under the Statute of Distribution, 167 0 and also the Schedule of Distribution to the Administration of Estates Act (cap. 45). He further said a distinction is to be drawn between succession of a 5 next-of-kin simpliciter and the Statute of Distribution and the Schedule to the Administration of Estates Act (cap. 45). In support of his argument, he cited- (i) 2 Williams on Executors 12th ed., at 724-726 (1930); (ii) Withy v. Mangles (14); (iii) 2 Jarman on Wills, 6th ed., at 1604 (1910); (iv) Elmsley v. Young 10 (4); (v) 3 Words & Phrases Judicially Defined, 1st ed., at 489 (1944)- "next-of-kin;" (vi) Avison v. Simpson (1); (vii) Re Gray, Akers v. Seers (5); (viii) Re Jackson, Holliday v. Jackson (6); (ix) Phillips v. Garth (11), and (x) Re Palmer, (10). Incidentally, all or nearly all of the cases cited by Mr. Rogers-Wright referred 15 to wills and settlements. Finally, Mr. Rogers-Wright told the court that he was asking for a declaration that the appellant is entitled to a moiety of the estate of the intestate. Mr. Strange for the respondent invited the court to say the appellant does not come within any of the categories envisaged 20 in the Schedule of Distribution to the Administration of Estates Act (cap. 45). He said that right through the Schedule the words "child or issue" are used. "Child," he said, means "child" and referred the court to (i) Re Kirk~ Nicholson v. Kirk (7), and (ii) Caller v. Caller (3). He told the court that in interpreting 25 statutes, words must be given their ordinary meaning. In reply to Mr. Strange, Mr. Rogers-Wright told the court that in Re Kirk (7), the court was construing the deliberate words used in the will. He further referred the court to: (i) 2 Williams on Executors, 12th ed., at 781 (1930); (ii) Loring v. Thomas (8); 30 (iii) Re Speakman (13) and (iv) Re Lucas's Will (9). I shall deal with both grounds of appeal together. There is no doubt that the appellant is the grandnephew of the intestate and the administratrix respectively. The question this court has to determine is this: Is the appellant entitled to share in the estate 35 of the intestate? The devolution of estate on intestacy in Sierra Leone is governed by the Second Schedule to the Administration of Estates Act (cap. 45), the Rules of Distribution. The Schedule is in England the Statute of Distribution, 1670 as amended by the Administra- 40 tion of Intestates Estates Act, 1685 (see 9 Halsbury 's Statutes of 294 SAWYERJ!. v. WILLIAMS, 1972-73 ALR S.L. 291 C.A. England, 2nd ed., at 659). I shall hereinafter refer to the Statute of Distribution as "the Statute". In the Statute it is stated that if there was no issue, and both of the intestate's parents were dead, but there were brothers and sisters of the intestate or children of deceased brothers and sisters, the estate was distributed 5 amongst them per stirpes. Under the rubric "Representation amongst collaterals" it is stated that the general effect of the provisions is that (supposing there be no wife) the estate, in case there are descendants, shall go between the children and their representatives; and in case 10 there are no descendants shall go amongst the next-of-kin or their representatives, and that the division is per capita where all the takers claim in their own right; and per stirpes where they, or some of them claim as representatives of another person. In Re Ross's Trusts (12) Wickens, V.C. said (L.R. 13 Eq. at 15 293; 25 L.T. at 819): "It has been long settled that, the word 'representatives' in this Act includes only 'descendants'." The right to stand in place of a deceased brother or sister was confined to children of such brother or sister so that if a man left a mother and grandchildren of his brother, the mother took the whole. 20 In Caldicot v. Smith (2) it was held that descendants of deceased collateral relatives of the intestate, other than the children of brothers and sisters, did not represent such collateral relatives. Distribution under the Statute shall only extend to children of brothers and sisters of the intestate. 25 I agree with Mr. Strange that "child" in the Schedule of Dis­ tribution to the Administration of Estates Act means what it says. It cannot mean grandchild or grandnephew. On the authority of In re Ross's Trusts (12) and Caldicot v. Smith (2), the appeal must fail and it is accordingly dismissed with 30 costs to the respondent, such costs to be taxed. Appeal dismissed. 35 40 295