SEY v. SEY AND ANOTHER

JUDGMENT OF BLAY J.S.C.

The short point for decision in this appeal is whether the learned trial judge was right in his construction of two clauses in a will which read as follows:

"(a) I give to my brother Kwamin Abadoo my two chambers and hall, one extra room occupied by Hazel and my big store.

(b) My brother Kwamin Abadoo is not to sell this house for any reason thereby to cause my children to go astray. He is to look after my children well and live with them peaceably and quietly as I had been doing".

[p.21]

The testator before the above bequest to his brother Kwamin Abadoo had bequeathed and devised his whole estate real and personal to his wife and children subject to certain "legacies" such as the one under construction. He also appointed executors of the will.

The appellant who is a daughter of the testator and suing on behalf of herself and her brothers claimed that the two clauses of the will quoted above, when properly interpreted or construed created Kwamin Abadoo a"trustee with respect to the house the subject of the several devises."

In support of her claim, her counsel, Mr. Hayfron-Benjamin, relied on a passage in Halsbury's Laws of England (2nd ed.), Vol. 34, p. 192. His contention appeared to be that since the testator had appointed executors of the will the said executors were empowered to deal with the whole estate, and that the testator having devised and bequeathed the whole of his "estate and effects, real and personal" unto his wife and children, the subsequent bequest to Kwamin Abadoo should be construed as a gift for life only and not as an absolute gift.

He further contended that since clause (b) of the will as quoted above enjoined Kwamin Abadoo not "to sell this house for any reason thereby to cause my children to go astray"; and was "to look after my children well and live with them peaceable and quietly as I had been doing", it follows that the testator had intended to constitute the said Kwamin Abadoo as trustee for the children with respect to the said house.

The learned trial judge after hearing arguments of counsel for the parties rejected the appellant's contention as held as follows:

"By clause (a) Kwamin Abadoo takes the devises in perpetuity. On his death the entire house does not vest in the plaintiff and her brothers absolutely as owners thereof. Clause (b) does not create Kwamin Abadoo a trustee with respect to the house".

It is against the above interpretation that the appellant has appealed to this co