IMPRAIM vs. BAFFOE [1980]DLHC1070

Date	1980-09-19
Suit No.
Citation No.	[1980]DLHC1070

OKUNOR J.

HAYFRON-BENJAMIN FOR THE APPLICANT.

ASIEDU-BASUA FOR THE CAVEATRIX.

[1980]DLHC1070
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													<main id="main" class="content" style="min-height: 60rem" >IMPRAIM<o:p></o:p>&nbsp;vs. <o:p></o:p>BAFFOE<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 520<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:
19 SEPTEMBER 1980<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">

HAYFRON-BENJAMIN FOR THE APPLICANT.<o:p></o:p>

ASIEDU-BASUA FOR THE CAVEATRIX.<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 1.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF OKUNOR J.<o:p></o:p>This is
an originating summons taken under Order 54, r. 4 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A), on 8 February 1977 requesting the court to
determine two specific issues endorsed on the summons.<o:p></o:p><o:p>&nbsp;</o:p>The facts
which led to this action are that the late Thomas Marshall made a will dated 28
May 1937 before his death. In the will he devised his house “Jehova Villa”,
inter alia, to certain named individuals, and further directed: “that both
themselves (names mentioned above) and their children may enjoy and occupy the
dwelling house ‘Jehova Villa’ as Family House.” Further down the will (and I
presume the part on which the argument of the defendant is mainly hinged) the
testator directed: “My dwelling house ‘Jehovah Villa’ referred to in this will
should not be sold for any purpose but be a family house.”<o:p></o:p><o:p>&nbsp;</o:p>It is the
complaint of the plaintiff that all went well until all the executors died.
Then the defendant stepped in in 1959, and argued that the house in question
was a family house and since he was head of the testator’s family, he had the
right to manage and control the house; he has since that time collected all
rents accruing from the house to the detriment of the plaintiff who is the sole
survivor of the specifically named beneficiaries in the will. Upon these facts,
and in these circumstances, the plaintiff requested the court to determine the
following questions:<o:p></o:p>Whether
“Jehova Villa” is for the whole family of Thomas Marshall (deceased) by virtue
of his will dated 28 May 1937.<o:p></o:p>(b) If
the defendant and other family members have an interest in the “Jehova Villa”
that is the extent of their interest.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It must
first of all be noted that the interpretation, construction or implementation
of a will really amounts to finding out the intentions of the testator at the
time he wrote the will, and those intentions must be gathered, as far as is
practicable, from the actual words used in the will by the testator.<o:p></o:p><o:p>&nbsp;</o:p>In fact,
this is one of the main reasons why the law insists that a will should be in
writing. Where the intention is not easily ascertainable from the words as
used, resort may then be had to the rules devised by law for the purpose.
Secondary, in construing a will - indeed any document - the clauses should be
read with reference to each other, unless it is quite clear from all the circumstances
that they were meant to be independent of each other. Thirdly, a person
construing a will is denied the luxury of conjecture though not precluded from
making necessary inferences.<o:p></o:p><o:p>&nbsp;</o:p>This last
will and testament of Thomas Marshall of Elmina and Apam made on 28 May 1937 by
which will he expressly revoked all wills and testamentary instruments
heretofore by him made, read:<o:p></o:p>