IN THE MATTER OF THE WILL AND CODICIL OFT. I. SCOTT (DECEASED) (022)  SLCA 1234 (14 November 1963);
T. I. Scott (the testator) died at Freetown in 1938, and probate of his will and codicil was granted in 1943 to A. T. Manley, the executor named in the will. On February 9, 1961, S. B. Scott (the applicant), the only surviving lawful son and next-of-kin of the testator, took out an originating summons in which he requested a construction of various paragraphs of testator's will and codicil. The respondent named in the summons was A. T. Manley. Applicant filed an affidavit in support of the summons. Respondent entered appearance to the summons and also filed an affidavit. The Supreme Court dismissed the summons under the proviso to Order XLII (10) of the Supreme Court Rules on the ground that the application was not for the construction of the will but rather for the purpose of the closi'na of the administration of the estate; and that the procedure by originating summons was inappropriate. The applicant appealed. Held, allowing the appeal, (1) that the matters raised in the summons were within the scope of Order XLII (10) of the Supreme Court Rules and were properly raised by originating summons; and (2) that the trial judge acted on wrong principles in dismissing the summons under the proviso to Order XLII (10) of the Supreme Court Rules. Case referred to: Earl of Harrow by and another v. Leicester Corporation (1915) 114 L.T. 129. Alfred H. C. Barlatt for the appellant/applicant. Solomon A. J. Pratt for the respondent. Col.E Ao.C.J. The short point in this appeal is whether the learned trial judge was right in dismissing this matter on October 19, 1962, in the circumstances in which he did so. These circumstances were as follows: On or about February 9, 1961, the appellant/applicant took out an originating summons in the following terms : "Let Alexander Theophilus Manley, of 48, Regent Road, Wilberforce, in the Colony of Sierra Leone, within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons which is issued upon the application of Samuel Bernard Scott, of 7, Regent Road, Wilberforce Village, in the Colony of Sierra Leone, a beneficiary of the will of Thomas Irvine Scott, deceased, the lawful child of the said Thomas Irvine Scott, deceased, for the construction of the said will generally and with special reference to the following paragraphs and for such directions and orders therein as may seem just and expedient : " 1. Paragraph 1 of the will reads: ' I devise and order that my dwelling at No. 7, Regent Road, Wilberforce, Sierra Leone, be inhabited by my wife, Alice Scott, and all my lawful children during their lifetime and also to my grandchildren and great-grandchildren, if any, and in any case my children should die without leaving any issue that my above-mentioned dwelling-house be used and remain as a family house under the control of my executor who is empowered to ask any one of the family to quit the premises if in his opinion such a one is not living a life subject to his approval. On no account is this house to be sold. I authorise my executor to let the house if there is no family therein and the amount of such rent to pass on to my estate.' " The question is: ' Does not this devise offend against the rule against perpetuity and/or the rule against accumulation?' " Paragraph 5 of the will reads: ' I give and devise that my empty lots at Regent Road opposite Mr. J. J. Johnson, of Liverpool Street, Freetown, Sierra Leone, if not sold before my death to my wife Alice Scott (the first portion where the oranges and other life trees are planted), and the other portion to Mrs. Sabina Taylor and Mrs. J. L. Metzger, of Freetown, and that my executor be responsible for the apportioning of the lots of them. I also order that the lots apportioned to my wife Alice Scott is only to be her property during her lifetime and after her death my executor to realise the portion of land in money and such money should be to my estate. My wife cannot mortgage or sell any portion of the land during her lifetime.' " The question is : ' Is not the devise herein to Alice Scott caught by the rule in Lassence v. Tierney?' " Paragraph 6 of the will reads: ' I give and devise that the bottom portion of my empty lot at Regent Road, Wilberforce, opposite Sally Scott after the motor roads downwards to be given to Mrs. Jane Smith, of Regent Road, Wilberforce, Sierra Leone, for her benefit and her heirs.' " The question is: ' Does not this devise fall into residue and, if so, to whose benefit does it accrue? (the devisee predeceased the testator).' " Paragraph 7 of the will reads: ' I give and devise if not sold before my death that my empty lot by Mr. Sammy Cole at present worked as a farm and gardening by my wife and child to my wife, Alice Scott, during her lifetime and after her death may be sold if necessary by executor in meeting the expense of my said wife's funeral but in case it is not sold my executor may realise the value of the land in money or retain it as part of my estate.' "The question is: 'If this land was not sold to meet expenses in connection with the testator's wife's funeral, does it not offend against the rule against perpetuity and I or the rule against accumulation?' " Paragraph 11 of the will reads: ' I devise and order that all the remainder of my estate not mentioned in this my will be distributed or otherwise managed by my executor.' " The question is : ' What is the meaning and effect of this paragraph?' " The last paragraph of the codicil reads: ' I give my executor all discretionary powers over this my will and may alter or execute any portion of this my will which to his opinion is to the best interest therewith.' " The question is: ' Ought not this paragraph to be struck out as being inconsistent with the essential requirement of a will and repugnant to its very nature?' " Is not Samuel Bernard Scott as the only surviving lawful son and next-of-kin of the testator entitled to the residue of the estate of the deceased? "And Take Notice that at the hearing the plaintiff will use the affidavit of Samuel Bernard Scott filed and annexed hereto. " Dated the 9th day of February, 1961." The respondent in this appeal was the respondent named in the summons. According to the affidavit of the appellant/ applicant sworn on February 9, 1961, and filed in support, the will in question was dated December 1, 1934, and the codicil dated March 3, 1936. It was also deposed that the testator died at Freetown on July 25, 1938, and probate of the said will and codicil was granted on August 26, 1943, by the Supreme Court to the respondent as being the executor named in the said will. A copy of each of the will and codicil was exhibited to this affidavit. The respondent entered appearance to the summons on February 21, 1961. On February 27, 1962, he filed an affidavit the contents of which, in my view, have very little or nothing to do with the matters raised on the summons. On this point I agree with the learned trial judge when, in the course of his ruling, he said the following in connection with this affidavit: "In this application the affidavit in opposition has disclosed matters which do not rest on the construction of the will .... " At the hearing of the summons on October 15, 1962, after Mr. Barlatt for the appellant/ applicant had started arguing, the respondent's solicitor raised the question as to whether or not the respondent was entitled to call viva voce evidence to assist the court. It appeared that at that stage the matter was adjourned to October 19, 1962, for a ruling on that point. This is patently clear from the ruling of the judge given on October 12. In the course of his ruling he said, inter alia : "The normal procedure for the disposal of matters in chambers is by affidavit. Because of the nature of this application and from the pleadings there is no doubt that both sides intended to pursue the matter in chambers. It should not be concluded, however, that because the application is in chambers therefore it must be tried by affidavits alone. R.S.C., Ord. 27, r. 21, states that ' The party intending to use any affidavit in support of any application made by him in chambers shall give notice to the other parties concerned of his intention in that behalf.' "But under the same rules, Ord. 41, r. 13, the judge may adjourn any application in chambers, made by summons or otherwise from chambers to court and vice versa. If this transfer is made from chambers to court there can be no objection to viva voce evidence to be taken or given. It would appear that counsel for the defendant is of the opinion that right to viva voce evidence in chambers is absolute but from the authorities it seems that the right is discretionary and the discretion rests with the judge. In this application the affidavit in opposition has disclosed matters which do not rest on the construction of the will but closely connected with it and about which evidence could usefully be given." The learned trial judge then went on to say as follows: "With regard to the submission of the counsel for the plaintiff/applicant it appears to me that the question of construction of the several provisions of the will of Thomas Irvine Scott is not paramount. The affidavit by the defendant clearly indicated that he conceived the issue as being purely factual. He bases his affidavit in opposition on two grounds mainly, and these are: (a) that as sole executor he had in good faith expended moneys from his pocket and (b) that the plaintiff himself repudiated the opportunity of carrying out the functions of a beneficiary in relation to the plot mentioned in paragraph 5 of the testator's will. He also gives the impression that he never, apart from the above instance, interfered with the plaintiff in the enjoyment of the above estate. " It is a fact that for about 16 years the administration of the estate has not been closed ; but I have to ask myself whether the passages referred to in the will, if construed, will determine the administration. Construction will be necessary where there is some obscurity, ambiguity or technical defect in the document under consideration. Although the application is for construction the issue from the affidavits is for the closing of the administration of the estate. If this is the purpose, and I take it to be the purpose, it cannot be obtained by construction. Any beneficiary may apply and that would be more effective. I am of opinion that this procedure is inappropriate and I am inclined to dismiss the application under the proviso of the provisions of Order XLII of the Supreme Court Rules. Incidentally, Order 54A, r. 4, of the Annual Practice under ' Discretion of the Court ' practically uses the same words as in our legislation. I dismiss this application and the costs are to be met from the estate." The appellant/applicant has attacked this decision on the following grounds, namely: (1) That the learned trial judge misdirected himself by presuming that the purpose for which the applicant made his application to the court was " for the closing of the administration of the estate " ; (2) The learned trial judge was wrong in holding that the passages of the will upon which the construction of the court was sought were not to be construed if their construction would not necessarily determine the administration; (3) The learned trial judge was wrong in dismissing the application after the court had adjourned specifically for his ruling on the point of whether or not evidence is to be taken viva voce without hearing any further arguments or submissions from counsel. It is conceded by counsel for the respondent in this appeal that paragraphs to 6 of the originating summons are matters clearly for construction. He contends, however, that paragraph 7 thereof is not. I have carefully considered the summons and the contents of the affidavit in support and, with the greatest respect, there is nothing I can find therein which suggests that the application was for the purpose of " the closing of the administration of the estate." On the contrary, it is my view that the purpose thereof was to interpret clauses of the will and thereby to enable and assist the executor, the respondent, to close the administration of the estate which had been so long outstanding. Both Mr. Pratt and Mr. Barlatt agreed that the application was made under Order XLII (10) of the Supreme Court Rules. The learned judge, in dismissing the application, purported to act under this Order. The relevant portion of this Order reads : •• The business, to be disposed of in chambers by judges, shall consist of the following matters, in addition to the matters which under any other rule or by statute may be disposed of in chambers: "(10) The determination of any question of construction arising under a deed, will or other written instrument and declarations of the rights of the persons interested: " Provided that a judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on originating summons." In the case of Earl of Harrowby and another v. Leicester Corporation (1915) 114 L.T. 129, it was held that if the court is asked to determine on a summons under Order 54A the true construction of a written instrument, the fact that parties may, after a decision on the construction, litigate further on a question of fact with which the summons is not concerned is not a sufficient reason for the court to refuse to determine such question under rule 4 of that Order. The Order ought to be interpreted in a liberal sense, and it is sufficient if it appears to the court that its answer will satisfy the proceedings then in issue. Order 54 A, r. 1, of the English Rules, reads as follows : " In any Division of the High Court, any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested." Rule 4 states : "The court or judge shall not be bound to determine any such question of construction if in their or his opinion it ought not to be determined on originating summons." These Rules are substantially the same as our Order XLII (10) and proviso. Applying the above principle, I do feel that all the matters raised in the summons are well within the provisions of this Order and matters quite properly raised on an originating summons. It is my considered view that before the learned trial judge formed the opinion that such construction ought not to be determined on originating summons both sides should have first been heard on the point or at least should have been given an opportunity of being heard. The record of proceedings shows clearly that neither was done. Both Mr. Barlatt and Mr. Pratt agreed before us that neither was done. In this regard I find that the learned trial judge acted on wrong principles in the exercise of the discretion given him by the proviso to Order XLII (10). The learned trial judge in arriving at his opinion also relied heavily on the affidavit of the respondent which, as I have already pointed out, had very little or nothing to do with the matters raised on the originating summons. In doing so, he misconceived the real purpose of the summons. This was a material fact which affected the exercise of his discretion. This court has always held that it will intervene where the court finds that the judge in the court below, acting under a misconception as to a material fact, did not exercise his discretion judicially. For the reasons given, I would allow the appeal and set aside the decision of the court below, and would order that the matter be remitted to the court below for determination by another judge of the issues raised on the originating summons.
Wills-Application for construction of will-Whether application was for purpose of closing administration of estate-Whet her originating summons was proper procedure-Discretion of judge to dismiss oppli_carion-Whether judge acted on· wrong principles in exercising discretion-Supreme Court Rules. Ord. XLII (10).