JUDGMENT OF ADUMUA-BOSSMAN J.
The application as expressed in the motion paper and supporting affidavit is for grant of probate in respect of the paper-writing bearing the date 9th day of July 1913 and the signature by mark of Opanin Yena of Odoben, now deceased, and also the signature by marks of six witnesses all of whom are also now deceased, which purports to be a testamentary instrument of the said Opanin Yena.
The affidavit in support of the application disclosed that Opanin Yena died a long time ago, but did not disclose the reason for the long delay in making this application as appears to be necessary according to Rule 45 of the Rules, Orders and Instructions for the Registrars of the Principal Registry of the Court of Probate in respect of Non-Contentious Business which provides that:—
"In every case where probate or administration is for the first time applied for after the lapse of 3 years from the death of the deceased the reason for the delay is to be certified to the registrars."
I however requested counsel for the applicant to state from the Bar the reason for the delay, and I am satisfied with the explanation which counsel gave, after consultation with the applicant, that all concerned with the document or instrument being illiterate, nobody knew that the instrument [p.197] had to be submitted to the court for scrutiny and validation until quite recently when, upon a dispute arising concerning one of the properties comprised in the instrument, the applicant sought the advice of counsel and was then advised about the necessity of making this application. The instrument contained the following material and/or operative clause:
“I do hereby avouch and declare one the said Kwaku Baffu, his heirs, executors administrators and assigns to bury me on death (paying all necessary expenses towards my death) and to succeed me on all and every points naturally according to Fante Custom; and that no other nor any man nor woman has no right to say or ask anything to or from Kwaku Baffu his heirs executors administrators and assigns.”
It will be noticed in the first place that the document or instrument does not contain any express appointment of a named or nominated executor. The appointment of an executor may however be implied, as was pointed out in In the Goods of Pamela Cook ([1902] P. 114) in which it was held that:—
“A simple direction to a certain person to pay debts of the testatrix, without any bequest to him and without specifically
