ADEKUNLE ADESEYE & OTHERS (PLAINTIFFS)
NATHANIEL A. WILLIAMS & OTHERS (DEFENDANTS)
(1964) All N.L.R. 459
Division: High Court, Lagos
Date of Judgment: 13th February, 1964
Case Number: LD/619/62
Before: Onyeama, Ag. C.J.
The first and second defendants are executors of the estate property of which the plaintiffs and the third defendants are beneficiaries. The plaintiffs alleged that the executors are not in accord in the administration of the trust hence they brought the action claiming (a) an order of court to remove the executors as trustees of the estate, (b) an account of monies which have since come into their hands as trustees of the estate.
The executors are empowered, under a provision in the will, to put out the property in question on rents for 15 years and use the money realised to pay rates, repairs and other legal outstanding, then to use the balance for putting up a memorial stone on the testator's grave, and thereafter to convey the property to the beneficiaries. It was contended that since the plaintiffs are not yet entitled to any part of balance of the accumulated rents under the provision in the will, the trustees are not accountable to them.
(1) A trustee will be removed if the court is satisfied that his continuance in office would be prejudicial to the due performance of the trust, and so to the interests of the beneficiaries, or if the trustee is disregarding his duty; therefore, since there is evidence that the differences which existed between the trustees have been resolved and that there is co-operation between them. There is now no necessity to remove them from office as trustees.
(2) The trust to erect a gravestone is one of imperfect obligation of which there is no cestui que trust to enforce the trust, and questions of title to the trust funds in the hands of the trustees or allegation of breach of the trust will only arise if the trustees fail to carry out the directions of the testator regarding the gravestone or if there is a balance after the trust has been carried out.
Lardner, for the Plaintiffs.
Alokolaro, for the 1st Defendant.
Adegbite for the 2nd & 3rd Defendants.
Onyeama, Ag. C.J. of Lagos:-The plaintiffs and the third defendant are descendants of A.A. Adeseye who died on the 30th of August, 1935, leaving a will in which the first and the second defendants were appointed executors of his estate.
He died leaving two houses, among other property. One house was 27 Okepopo Street, Lagos, and the other was 3 Ajanaku Street, Lagos.
The will which was admitted to probate on the 25th of February, 1956, provides, inter alia:-
"(3) My property known as No. 3 Ajanaku Street, Lagos I devise to my daughter Miss Yeside Frances and my sons Mr Bolaji Adeseye and Abiodun Adeseye (who is a minor) in their own rights absolutely.
"(4) My property known as No. 27 Okepopo Street, Lagos I devise to all my children Mr Adekunle Adeseye, Jebba Adeseye Mrs Yeside Frances Bolaji Adeseye and Abiodun Adeseye and my grandchild Ajibabi Adeseye daughter of my late son Ademuyiwa Adeseye in their rights absolutely each to have equal share.
"(5) To meet up expenses of my burial ceremonies after my demise the said property in paragraph 4 above should be put out on rents for fifteen years and the money realised should be used to pay rates repairs and other legal outstandings and the balance should be used in putting up a memorial stone on my grave. The property No. 3 Ajanaku Street, Lagos should be put out on rent for five years only for the purpose indicated above. After five years the property should be handed over to my children as directed under paragraph 3 of this Will."
The first and the second defendants (hereinafter referred to as the trustees) appear to have been managing the estate of the deceased since probate was granted.
The plaintiffs now accuse them of mis-management and seek an order removing them from office as trustees and substituting the first and the third plaintiffs for them. The plaintiffs also claim an order directing an account to be taken "of all monies that have passed through their hands as executors and trustees of the estate." A beneficiary under the will, Mrs Yeside Frances, was sued and is the third defendant. She was made a defendant because, according to the plaintiffs, she refused to join the plaintiffs in the suit.
It appears from the evidence that the property, No. 3 Ajanaku Street has since been conveyed to the beneficiaries entitled to it and that the trustees are no longer concerned with its management.
This leaves No. 27 Okepopo Street as the only property with which the trustees are concerned, and in relation to which their removal would have any practical effect.
The plaintiffs and the third defendant are tenants in common in respect of that property. One of the plaintiffs sues by a next friend and must therefore be an infant or a person under some form of legal disability.
The main complaint of the plaintiffs is that the trustees have failed to account to them for monies which came into their hands as trustees of the estate. It is also said that the trustees were not in accord in the discharge of the trust and that this discord jeopardised the estate. For these reasons the plaintiffs ask this Court to remove the trustees.
A trustee will be removed if the court is satisfied that his continuance in office would be prejudicial to the due performance of the trust, and so to the interests of the beneficiaries; or if the trustee is disregarding his duty.
There is evidence that the differences which existed between the trustees have now been resolved and that there is close co-operation between them. I have no reason to think that the assets of the estate are being wasted or that the trustees are not putting their best endeavours into the administration of the trust.
Apart from the charge that accounts had not been rendered to the plaintiffs there is no ground on which the removal of the trustees would even be considered.
Turning to the claim for an account, it does not appear to me that the plaintiffs have made out a present title at law or in equity to the monies received by the trustees. These monies were to "meet up" the expenses of the burial ceremonies after the testator's death and to pay "rates repairs and other legal outstandings." The balance of the accumulated rents over fifteen years, after deductions for the burial ceremonies, rates, repairs, and other legal outstandings was "to be used in putting up a memorial stone" over the testator's grave. The plaintiffs are not, under the will, entitled to any part of these accumulated rents, and I fail to see how the trustees are, in respect of the accumulation or the balance, accountable to them.
The provision itself appears to me to create a valid private trust. It does not offend the rule against perpetuities, for after fifteen years of the will coming into force the house should be conveyed to the beneficiaries and the money in the hands of the trustees expended in the manner provided for in the will. The trust to erect a gravestone is one of imperfect obligation of which there is no cestui que trust; there is also no residuary clause in the Will, and so no one to enforce the trust.
If and when the trustees fail to carry out the directions of the testator regarding the gravestone the question of the title to the funds in their hands will arise; and will also arise if there is a balance after the trust has been carried out.
As at present advised I consider that the plaintiffs have no right to an account and that no reason has been shown why the trustees should be removed. There was no cause of action disclosed against the third defendant.
The claim is dismissed.
Costs to the defendants assessed at £21.