7th January, 1935.

3PLR/1935/9 (SC)



CWLR (1935) 4








Euba for the plaintiff.

A. Thomas for the defendants.



ESTATE MANAGEMENT: – Will – Devise of property to be held as “family property” –Testator having acquired property by conveyance in English form – Will made in English form­ – Legal effect

REAL ESTATE: – Family property created via will – Property acquired by testator in fee simple – Whether testator can create customary law family property rights over a property acquired by conveyance in English form for the benefit of children – Nature of rights and holding of beneficiaries

CHILDREN AND WOMEN LAW: Young people and Succession – Succession of children jointly to property via will of deceased father – Whether such property designated as family property can be wholly or partially attached towards satisfying a judgment debt standing against some of the children – Relevant considerations

DEBTOR AND CREDITOR LAW:- Recovery of judgment debt – Proceedings against property wherein judgment debtors had interest – whether family property held jointly by creditors and other persons in accordance with customary law can be attached towards the satisfaction of debt




The judgment of the Divisional Court (Graham Paul, J.) was delivered at Lagos on 7th January, 1935.



This matter came before this Court on an Interpleader Summons at the instance of Mary Bolaji Jacobs against Messrs. Oladunni Brothers who, as the successful plaintiffs in a suit against three of the children of the late Joseph Jacobs, had attached certain property in Ebute Metta which belonged to the deceased at his death. Mary Bolaji Jacobs is another child of the deceased.


By order of this Court on 15th October, 1934, the Interpleader proceedings were converted into a suit and pleadings were ordered and filed.–The suit came on my list for hearing on 2nd January, 1935, when by consent a certified copy of the Will of the late Joseph Jacobs was put in evidence and I heard counsel in argument on the pleadings and the terms of the Will.


These proceedings relate to a property at No. 57 Patey Street, Ebute Metta. This property is devised in Joseph Jacobs’ Will as follows :­

“I Give And Devise my said dwelling–house situate at No. 57 Patey Street in Ebute Metta aforesaid and the appurtenances thereunto belonging to all my children the said Ebenezer Sanya Jacobs Mary Mobolaji Jacobs David Olayimika Jacobs Comfort Ayodele Jacobs and Adelaide Morenike Jacobs and their respective issue or issues jointly. It being my intent and express wish that the said property shall not on any account whatever be alienated or sold by any of my said children or any of his or her issue and that the same shall always remain and be retained as a “family property” in accordance with the native law customs and usages prevailing in Lagos aforesaid. I also Direct that the devise of the said property shall be free from any marital right or control on the part of any of my said daughter or her female issue or issues respectively as aforesaid is are or shall be concerned.”


Counsel for the execution creditor stated in his argument that the deceased acquired the fee simple of this property under a conveyance in English form. For the purpose of this argument, I assume that to be so. He also pointed out that the deceased had made a Will in English form. From these promises and from the terms of the Will he argued that the children of the deceased were to be treated as tenants in common if the property under English law; and that the shares of the three children who were the Judgment debtors could be attached by their Judgment creditors and sold. I am unable to accept this argument.


Will is clear enough in its terms. It shows definitely the intention of the testator to preserve as a “family property,” in accordance with Lagos native laws customs and usages, the particular property in question. It is expressly devised to the children and their issues jointly for that purpose. The rights of the children are defined and limited by the terms of the Will. And in a matter such as this, relating as it does to inheritance or testamentary disposition by native to natives, I am not prepared to admit English law to defeat the express intention of a native testator. I hold that under the Will the property in question became a family property as effectively as if the children had succeeded to it under native law and custom in intestacy.

that the shares of the three children who were the Judgment debtors could be attached by their Judgment creditors and sold. I am unable to accept this argument.


Counsel for the defendants suggested that the devise of this property in the Will was a devise in fee simple. On the terms of the devise I cannot agree with that suggestion. The testator made it quite clear in the devising clause that his intention was nothing of the kind. This is confirmed by the Mast clause in the Will which, in contradistinction to the terms of the devise of this particular property, devises to all his children the residuary real estate in fee simple.


error: Our Content is protected!! Contact us to get the resources...