JUDGMENT OF MENSAH BOISON J.
The writ in this matter was taken pursuant to Order 60 r. 21 (2) of the Supreme (High) Court (Civil Procedure) Rules, 1954 (L.N. 140A), to determine who was entitled to the grant of letters of administration to the estate of one Dr. Kenneth Charles Whittaker deceased. The facts are not in dispute and the trial was confined to legal submissions.
The plaintiff, a Ghanaian, was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to the deceased who died intestate. The intestate, a professor of mathematics at the University of Science and Technology, Kumasi, was English by nationlity. He died at his home at Oxford in England, with Kumasi as his fixed place of abode at the time of his death.
There was no issue of the marriage with the plaintiff. During the subsistence of his marriage the plaintiff, the intestate had two male children outside the marriage by the caveatrix. The two children as admitted are illegitimate. They are Allan Whittaker aged thirteen and Michael Whittaker aged eleven-and-half years. The caveatrix seeks a joint grant of letters of administration with the plaintiff widow because of the interest of her two sons by the intestate as averred in paragraph (10) of the amended statement of defence which,
"is inextricably mixed up with the interest of the successor (and) the defendant contends that as the mother of the children she is the person best suited to represent them and the successor in this matter."
The material issue set down in the summons for directions is:
"Whether or not by entering into concubinary relationship with the defendant while his marriage under the ordinance subsisted, the late Kenneth Charles Whittaker became subjected to the customary law of this country."
The stand of the plaintiff is a simple one without any gloss. On her behalf it was submitted that under the Marriage Ordinance the widow and the children of the marriage were entitled to two-thirds part of the estate, the remaining one-third portion going to the family of the deceased. That was the case where the deceased was subject to customary law. But as the late Dr. Whittaker was a non-Ghanaian he was not subject to [p.270] customary law. Consequently, the plaintiff as widow took the other one-third part also. Therefore whether as to the two-thirds part or the whole, the plaintiff's interest entitled her to a grant.
Learned counsel for the plaintiff conceded the point that the deceased as the putative father was by cu
