ELLIOT AND ANOTHER vs. KING AND ANOTHER [1966]DLHC1689

Date	1966-07-13
Suit No.
Citation No.	[1966]DLHC1689

LASSEY J.

DR. J. W. DE GRAFT-JOHNSON (WITH HIM MYLES ABADOO) FOR THE PLAINTIFFS.

C.F. HAYFRON-BENJAMIN FOR THE DEFENDANTS.

[1966]DLHC1689
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													<main id="main" class="content" style="min-height: 60rem" >ELLIOT AND ANOTHER <o:p></o:p>vs. <o:p></o:p>KING AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1966] GLR 654<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
13 JULY 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. J. W. DE GRAFT-JOHNSON (WITH HIM MYLES ABADOO)
FOR THE PLAINTIFFS.<o:p></o:p>

C.F. HAYFRON-BENJAMIN FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.<o:p></o:p>In this
action the original plaintiff Frederick Moore, now deceased, claimed that as
the devisee under the will of Mrs. Patience Williams, deceased, dated 18
October 1935, probate whereof was granted on 27 January 1944, he was entitled
to recover from the defendants who are the beneficiaries under the will of
their late father Thomas Adjei king of Cape Coast, the premises and
hereditaments described as house No. D.35/2, situate at Cape Coast; in
addition, the original plaintiff, the late Frederick Moore, also claimed for
(a) mesne profits and (b) an injunction order against both defendants.<o:p></o:p>After
pleadings had closed the following main issues were agreed and settled for
trial:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) whether
the defendants are not trespassers and therefore accountable to the plaintiffs;
<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2)
Whether by virtue of the fact that Mrs. Nancy Campbell died intestate Mrs.
Patience Williams was the only heiress at the date of her mother’s death, the
property was not devisable by her; and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3)
Whether the late T. A. King as executor to Mrs. Patience Williams had any
authority or right to give any directions as to the disposal of the property
which by her will she had specifically devised to plaintiffs.”<o:p></o:p><o:p>&nbsp;</o:p>The facts
which are not seriously in dispute are stated briefly as follows: The
testatrix, Mrs. Patience Williams of Cape Coast, died in 1943. She left a will,
dated 18 October 1935, whereby she appointed her son, the late T.A. King,
father of the present defendants, as her sole executor. Under a clause in the
said will of the late Mrs. Patience Williams, she devised a two-storeyed
building popularly known and referred to as “Dr. Pitts’ House,” but now
numbered as D.35/2 situate on Jerusalem Street, Cape Coast, to the original
plaintiff, the late Frederick Moore, who was the testatrix’s great grandson.<o:p></o:p><o:p>&nbsp;</o:p>The late
T. A. King, the defendants’ father, and the sole executor under the will of the
late Mrs. Patience Williams, applied to the court and obtained probate of the
said will on 27 January 1944; copy of the probate together with a certified
true copy of the original will is in evidence as exhibit A. The sole executor
under the will of the testatrix also died on 23 March 1948, and left a will
whereby he purported to leave the plaintiff’s beneficial interest in the house
so devised to him absolutely under the will, exhibit A, to his children,
including the present defendants. The defendants upon the demise of their
father, the said T. A. King, took possession of the said house No. D.35/2, now
in dispute, which had been previously devised absolutely under clause 5 of
exhibit A to the original plaintiff, Frederick Moore, now deceased, and have
remained in possession and occupation thereof up to the present time. The
defendants and a number of other members of their family are beneficiaries
under various clauses in the same will, exhibit A, of the late Mrs. Patience
Williams, and have been and still are in unfettered exclusive enjoyment of the
properties so devised to them as the beneficiaries. The defendants have refused
and still refuse to deliver up possession of the said house in dispute to the
plaintiff or his successors or executrices, who are the present plaintiffs
herein. Their reasons for so remaining in possession of the said house or
failing to deliver up possession to the late Frederick Moore or his successors
or agents are:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) That
the house referred to as D.35/2 Cape Coast, was not the self-acquired property
of the testatrix, it being the family property of the testatrix’s family and
that she had no disposable interest in it;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) That
the original plaintiff, the late Frederick Moore, the </main>