ELLIOT AND ANOTHER v. KING AND ANOTHER

JUDGMENT OF LASSEY J.

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.

After pleadings had closed the following main issues were agreed and settled for trial:

“(1) Whether the defendants are not trespassers and therefore accountable to the plaintiffs;

(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

(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.”

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.

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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