KING AND ANOTHER v. ELLIOT AND ANOTHER
1971
COURT OF APPEAL
CORAM
- KOI LARBI
- BENTSI-ENCHILL JJ.S.C.
- SOWAH J.A
Areas of Law
- Conflict of Laws
- Probate and Succession
- Property and Real Estate Law
- Equity and Trusts
1971
COURT OF APPEAL
CORAM
AI Generated Summary
On appeal from Lassey J., the Supreme Court resolved a dispute over Pitt’s House arising from the 1935 will of Patience Williams, sole surviving daughter of Nancy Campbell. Nancy Campbell, a foreign national domiciled in the Gold Coast, died intestate; Patience acted as owner and her will distributed properties to descendants, including the plaintiff and defendants. After executor T. A. King died, his children took control of Pitt’s House, citing a ten‑year income provision and claiming family rights under Fante law. The Court held that, absent proof Nancy Campbell adopted Fante customary law, English common law as at 1874 governed her estate; under the Statutes of Distribution, Patience inherited absolutely and could devise Pitt’s House to the plaintiff. Even assuming customary law, the family accepted Patience’s distributions, defendants were not members of Nancy Campbell’s maternal family, and equity barred approbation and reprobation. The appeal was dismissed.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
The facts in this appeal from the judgment of Lassey J. (as he then was) may be summarised as follows:
Patience Williams who died in 1943 had by her will devised various properties to her descendants and relations. She was the only child of her mother, Mrs. Nancy Campbell the original owner of the properties, who died intestate. It is not clear from the evidence whether Patience Williams' title to the properties rested simply on the fact of her being the only child of Nancy Campbell, or whether Nancy Campbell gifted the properties to her. There is a suggestion in the original pleading of the defendants-appellants (hereinafter called the defendants) that Nancy Campbell made a gift of the properties to Patience Campbell's daughter who predeceased Patience Campbell. There is the admission by the second defendant under cross-examination at page 53 of the record of proceedings that Nancy Campbell bequeathed all her self-acquired properties to her only child Patience Williams. And there is also the possibility, wholly uncanvassed, that Patience Williams was the issue of a marriage under the Marriage Ordinance.
But notwithstanding the lack of clarity regarding the basis of her title to the said properties originally owned by her mother, it is stridently clear that she dealt with the properties in the character of owner, was in exclusive and undisputed control and possession of them and that her dealings with the said properties during her lifetime and upon her death were acquiesced in and even adopted and accepted by Nancy Campbell's "family," such as it was. By her will dated 8 October 1935, she distributed the properties among her descendants and relations including the plaintiff-respondent (hereinafter called the plaintiff) now deceased, and the defendant. Every disposition under her will had taken effect and been accepted by the various beneficiaries including the defendants to whom one of the houses had been devised. The only exception was the property known as "Pitt's House" which was devised to the plaintiff-respondent.
[p.56]
The defendants are in control of Pitt's House, collecting the income therefrom, although it was not devised to them, and have refused to surrender possession of it to the plaintiffs to whom it had been devised by Patience Williams under a clause of the same will by virtue of which the defendants are enjoying other property devised to them. And the plaintiff's claim is for recovery of possessio