Jurisdiction: Colony of Sierra Leone (British West Africa)
Court: Supreme Court of Sierra Leone (High Court, Trial Jurisdiction)
Judge: Hon. Justice Luke, Ag. J. (Acting Chief Justice)
Date of Judgment: 3 March 1952
Case Number: Civil Case No. 170 of 1950
Legal Area(s): Wills and Probate; Property Law (Real Property)
Tags: joint tenancy; tenancy in common; construction of wills; intestate succession
Land Law – Co-ownership – Joint Tenancy vs Tenancy in Common – Devise of real property to multiple beneficiaries prima facie creates a joint tenancy, absent contrary intent. Any words indicating an intention to divide the property or benefit separate family lines will negate a joint tenancy and result in a tenancy in common. Succession – Wills – Construction – Ambiguous will terms (e.g. “to be used as family property and not sold”) must be interpreted to give effect to the testator’s intention. The court will consider the will as a whole and, if necessary, supply or omit words to carry out that intention. Wills Act 1837 (s.28) – A devise without express limitation passes the testator’s full estate (fee simple) unless a different intention appears from the will.
Procedural Posture
This case came before the Supreme Court of Sierra Leone as a civil action at first instance. The plaintiff initiated proceedings in the High Court (then styled the Supreme Court in the colony) seeking recovery of possession of a house in Freetown. Because the dispute turned on the interpretation of a will, the parties agreed to frame a preliminary issue for the court: whether the will’s devise of the property to two named beneficiaries created a joint tenancy or a tenancy in common. Resolving this issue was critical to determine ownership and the right to possession. The case was heard by Luke, Ag. J. (Acting Chief Justice). Counsel for the plaintiff (Mr. Edmondson) and for the defendant (Mr. O. I. E. During) presented argument on the construction of the will. The matter arrives at this posture as a test case on the nature of co-ownership created by the will, which would decide the outcome of the possession claim. (It is noted that this trial judgment was later appealed to the West African Court of Appeal, but the analysis here is confined to the trial court’s decision unless otherwise indicated.)
Facts of the Case
Background: The dispute centered on a family property at No. 12 Jenkins Street, Freetown, which had belonged to the late Jallah Janneh (the testator). By his last will and testament executed on October 3, 1898, the testator devised his residential house to two of his natural sons, Alimamy Janneh and Mormodu (alias Mamadu) Janneh. The will included a significant proviso: “the property is to be used as family property and is in no wise to be sold.” The testator had other children besides these two sons, but only the sons were named as devisees of this particular house.
Parties: By 1950, many years after the will, a conflict arose between descendants of the two beneficiary sons over who now owned or controlled the house. The plaintiff, Mr. Timbo, was from the family of one son (one branch of the testator’s lineage), and the defendant, Mr. Jalloh, represented the family of the other son. It appears that one of the original sons had died, and the plaintiff (claiming through the surviving or one branch) asserted sole title to the property, while the defendant (claiming through the other branch) resisted, maintaining an entitlement to a share of the property.
Claim: The plaintiff brought an action to recover possession of the Jenkins Street house from the defendant (who was occupying or asserting rights to it). The plaintiff’s claim to exclusive possession was premised on the argument that under the will’s devise, the two sons had held the property as joint tenants, and thus the plaintiff (standing in the shoes of the surviving son or his estate) now owned the entire property by right of survivorship. Essentially, the plaintiff contended that because one co-beneficiary had died, the entire ownership “survived” to the other line, extinguishing the defendant’s interest.
Defense: The defendant countered that the testator’s will did not create a joint tenancy, but rather a tenancy in common. The defendant pointed to the will’s instruction that the house be kept as “family property” and not sold, arguing this reflected the testator’s intention that each son’s family should ultimately benefit from the property. In the defendant’s view, each son took a distinct half-share that would pass to that son’s heirs (the “respective families”), rather than the surviving brother. Therefore, the defendant (from the family of the other son) asserted an ongoing entitlement to his branch’s half-share and contested the plaintiff’s claim to sole ownership.
With the factual scenario essentially undisputed – the will and its wording were known and the parties’ relationship to the original devisees clear – the core of the case turned on a matter of law: how to interpret the will’s devise and whether it gave rise to a joint tenancy or a tenancy in common between the two sons. The resolution of that legal issue would determine the outcome (if a joint tenancy, the plaintiff would succeed in claiming the whole property; if a tenancy in common, the defendant’s family retains their half interest and the plaintiff’s claim for exclusive possession would fail). The court thus proceeded to determine the proper construction of the will’s language in light of applicable principles of property law and will interpretation.
Issues for Determination
The court distilled the dispute into the following key legal issues for determination:
Primary Issue – Nature of Co-Ownership: Did the will’s devise of the house to the two sons create a joint tenancy or a tenancy in common? This required examining the will’s wording (“to my natural sons A and B… to be used as family property and not sold”) and deciding which form of concurrent ownership the testator intended.
Interpretation of “Family Property” Instruction: What is the legal effect of the testator’s instruction that the property “be used as family property and not sold”? Specifically, does this phrase constitute an indication of the testator’s intent that alters the default legal presumption (thereby severing a joint tenancy or creating distinct shares)?
Testator’s Intention and Will Construction: How should the court give effect to the testator’s intention as gleaned from the will? For instance, can or should words be implied or understood in the will (such as “respective families”) to clarify the meaning of “family property”? More broadly, the issue was what canons of construction apply to ambiguous or inartfully drafted wills, especially one prepared by a layperson (“bogus will” in counsel’s words).
Application of Wills Act 1837, Section 28: Although not disputed by the parties, the court noted a statutory interpretation issue: by virtue of section 28 of the Wills Act 1837, a devise of real estate without words of limitation conveys the whole estate (fee simple) of the testator to the devisees unless a contrary intention appears. The issue arose whether any contrary intention appeared in this will to limit the sons’ estate (e.g. to a life interest) or if they took a fee simple (absolute ownership) in whichever form of co-ownership was determined.
Ultimately, the fundamental question was which legal characterization of the devise aligned with the testator’s true intention: Did the two beneficiaries take the property as joint owners with rights of survivorship, or as tenants in common with distinct inheritable shares?
Arguments of the Parties
Plaintiff’s Arguments
Counsel for the plaintiff argued that the will should be construed as creating a joint tenancy between the two sons. The plaintiff’s submissions included the following points:
Default Rule of Joint Tenancy: The plaintiff emphasized the long-settled common law rule that a devise of property “to two or more persons simply” (i.e. without additional qualifying words) results in the beneficiaries holding as joint tenants. He cited the authoritative treatise Jarman on Wills (6th ed.) at p.1783, which states: “A devise to two or more persons simply, it has been long settled, makes the devisees joint tenants.” In this case, the dispositive clause initially reads “To my natural sons Alimamy Janneh and Mormodu Janneh my house and premises at Jenkins Street…,” which, taken alone, fits the pattern of an unqualified gift to multiple people. Thus, by default, the sons would be joint tenants.
“Family Property” Phrase as Uncertain/Redundant: The plaintiff contended that the added instruction “the property is to be used as family property and is in no wise to be sold” should not change the outcome. His solicitor argued that the phrase “to be used as family property” was void for uncertainty or legally inoperative. In support, he cited several precedents suggesting that vague expressions of motive or hope in a will (especially regarding personal property) may have no binding effect. Notably, he referenced cases (two of which involved personal property and one involving a mixed estate of real and personal property) to show that similar “family” clauses had been disregarded as too uncertain or not altering the legal estate. One such case was Doe d. Hayter v. Joinville (1802) 3 East 172, where the term in question encompassed both real and personal estate – the plaintiff argued those decisions indicated “family property” has no technical effect, at least insufficient to sever a joint tenancy in land.
No Express Severance Words: The plaintiff noted that the will did not contain classic words of severance or division such as “in equal shares,” “share and share alike,” “between” the two, etc. Absent clear language dividing the property, the plaintiff urged the court to adhere to the joint tenancy presumption. He warned that reading the will as creating separate shares would require inserting language not actually used by the testator.
Outcome Sought: If the court accepted this view, Alimamy and Mormodu took the house as joint tenants. Therefore, upon the death of one son, the surviving joint tenant (or his estate, if he too had died and left heirs such as the plaintiff) would be solely entitled to the whole property by the right of survivorship. The plaintiff, claiming through that survivor, would then rightfully be entitled to possession of the entire house, ousting any claim by the other son’s lineage. In short, the plaintiff asked for a declaration of sole ownership (based on survivorship) and consequent recovery of possession.
Defendant’s Arguments
Counsel for the defendant argued in favor of a tenancy in common, contending that the will’s language evidenced an intention to give each son a separable share intended for his family line. Key points of the defendant’s argument included:
Intention Indicated by “Family Property”: The defendant placed heavy emphasis on the phrase “to be used as family property and not sold.” Far from being meaningless, this wording was said to reveal the testator’s true intention. According to the defendant, by instructing that the house remain family property, the testator meant for the property to stay within each son’s family over generations (in other words, an inheritance to descendants). The prohibition on sale reinforced that the testator did not intend the sons to treat it as their personal absolute property to dispose of freely; instead, it was to be preserved for the benefit of the family lineage. This implication – that each son’s respective family should ultimately enjoy the property – is fundamentally at odds with a joint tenancy (since under joint tenancy one son’s line would be entirely cut off if that son predeceased the other). Thus, the defendant argued, the “family property” clause is a word of severance or at least a strong contextual indicator that the sons were meant to hold distinct shares (tenancy in common) rather than as one unified joint interest.
Historical/Statutory Context – Wills Act 1837: The defendant acknowledged that prior to the Wills Act 1837, a devise like this (to children without words of inheritance) might have given those beneficiaries only a life estate, with the remainder going to the testator’s heir-at-law. However, by section 28 of the Wills Act 1837, such a devise now passes the entire estate (fee simple) to the beneficiaries, unless a contrary intention appears. The defendant’s counsel cited Cheshire’s Modern Real Property (5th ed., 1944) at pp.113–114, which explains that thanks to this statute, no special words (“heirs of the body,” etc.) are needed to confer a fee simple. In this case, each son would thus take a fee simple interest in whatever share the will gave him, rather than just a life interest. The defendant did not dispute that a full estate passed – the question was how it was shared between them. He suggested that the “contrary intention” that might modify the nature of their estate was not about limiting it to a life interest (clearly the testator intended the sons’ families to inherit, so a life estate would make little sense), but rather about tenancy in common vs joint tenancy. In other words, the will’s context (the “family” instruction) was the contrary intention that would prevent the usual joint tenancy presumption from applying, instead giving each son a separate inheritable estate in common.
Canons of Construction – Favor Tenancy in Common: The defense also invoked the general principle that, where there is ambiguity in a will, courts often lean toward a construction that avoids disinheriting a branch of the family. Equity historically tends to favor tenancies in common over joint tenancies in doubtful cases, to prevent unintended disinheritance due to survivorship. The defendant argued that here any ambiguity about the testator’s intent should be resolved in favor of a tenancy in common, since that interpretation allows both sons’ descendants to benefit, aligning with the “family property” concept. Counsel likely referenced case law (such as Robertson v. Fraser and In re Woolley) that “anything which indicates an intention to divide the property must negate a joint tenancy.” These authorities bolster the view that even a slight indication of separate benefit (e.g. mentioning “family”) will cause the court to find a tenancy in common.
Outcome Sought: The defendant urged the court to declare that Alimamy and Mormodu Janneh took the house as tenants in common, each owning an undivided half-interest that would pass under their respective estates. Under this view, when one son died, his share would not accrue to the other brother but instead would go to his own heirs (the defendant’s side of the family). Therefore, the plaintiff could at most claim the half derived from his own ancestor, but not the defendant’s half. The defendant essentially sought dismissal of the plaintiff’s possession claim, maintaining the co-ownership (with the defendant’s branch entitled to continue occupying or using their undivided share of the family house).
Authorities Cited
Case Law: Both parties and the court relied on several precedents, including classic English authorities on co-ownership and will interpretation. Notable cases cited in arguments or the judgment:
Doe d. Hayter v. Joinville (1802) 3 East 172; 102 E.R. 563: An older English case involving a will, cited by the plaintiff. It dealt with a mixed devise of real and personal property with familial terms. The trial judge ultimately found this case distinguishable, as it was not solely about real estate and thus less applicable to the present facts.
Lucas v. Goldsmid (1861) 29 Beav. 657; 54 E.R. 783: Cited in the judgment (dicta of Romilly M.R. applied). This Chancery case provided guidance on the meaning of the word “family” in relation to real property. It established that referring to property going to someone’s “family” implies inheritance by that family line (the property passing down generations), which is suggestive of tenants in common (so each family line retains a share). Romilly M.R.’s remarks in Lucas were influential in the court’s reasoning here.
Robertson v. Fraser (1871) L.R. 6 Ch. App. 696; 40 L.J. Ch. 776: A leading case from the Chancery Court of Appeal, cited by the defendant and applied by the court. In Robertson v. Fraser, Lord Hatherley L.C. famously stated that “anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy.” This principle was directly on point: even a subtle indication of separate shares or separate benefit in a will is enough to negate the joint tenancy presumption. The trial judge in Timbo v Jalloh quoted and applied this dictum, treating the “family property” clause as just such an indication of division.
In re Woolley, Wormald v. Woolley [1903] 2 Ch. 206 (Chancery Division): Cited in the judgment. Re Woolley is another case addressing joint vs common in a will context. It reinforced the notion that equity leans against joint tenancies where the context suggests the testator didn’t intend survivorship. In that case, the court found a tenancy in common, noting presumptions and the testator’s probable intent. Joyce J.’s judgment in Re Woolley referred back to Robertson v. Fraser, thereby connecting the chain of authority on indicating intent to divide property.
In re Haygarth, Wickham v. Haygarth [1913] 2 Ch. 9; 108 L.T. 756: Chancery case, dicta of Joyce J. applied. Haygarth was cited for a different but related principle: it discusses the court’s power in construing wills to add or omit words to effectuate the testator’s obvious intention when the will as written is unclear. Joyce J. in In re Haygarth stated that if the testator’s intention can be gathered with reasonable certainty from the whole will, the court can go so far as to supply missing words or disregard superfluous words in order to give that intention effect – even “against the literal sense” of specific wording. This authority was invoked by the judge in Timbo v Jalloh to justify interpreting “family property” as if the will had said “to my sons and their respective families.”
Halsbury’s Laws of England, 1st ed., Vol. 28, p.780, para.1422: (Treatise) Quoted in the judgment for general principles. This passage summarized that when property is given concurrently to several persons, whether they take jointly or in common depends on the whole will’s context. The default is joint tenancy, but any context suggesting division will tilt it to tenancy in common, and in cases of ambiguity the court prefers tenancy in common.
Jarman on Wills, 6th ed. (1910), pp.1583 and 1585: An authoritative wills treatise. The court referenced Jarman at 1583 for the basic presumption of joint tenancy on a gift to multiple persons “simply” (as used by plaintiff), and at 1585 where Jarman discusses the varied meanings of “family” in wills. Jarman notes that “family” can mean different things (sometimes children, sometimes all next of kin), and when a gift is to the “families” of named persons, often it implies those persons’ descendants. This supported the interpretation that “family property” meant each son’s family.
Cheshire’s Modern Real Property, 5th ed. (1944), pp.113–114: Cited by the defendant regarding the Wills Act 1837, s.28 (the passing of the whole estate without words of inheritance).
Wills Act 1837 (7 Will. IV & 1 Vict. c.26), Section 28: This statute was noted under “Legislation construed”. Section 28 provides that a devise of real estate without limiting words shall pass all the estate or interest which the testator had power to dispose of, unless a contrary intention appears in the will. The court referenced the terms of s.28 (particularly to confirm the sons took a fee simple, not just a life estate, since no contrary intention of a lesser estate appeared).
Through these cases and materials, the court had a well-defined framework: absent anything else, Alimamy and Mormodu would be joint tenants, but the presence of any indication in the will favoring separate inheritances or division would override that default and create a tenancy in common. The meaning of “family property” was thus analyzed against this backdrop of authority.
Decision / Judgment
Ruling: Justice Luke (Acting C.J.) delivered a judgment in favor of the defendant’s interpretation, holding that the two sons took the property as tenants in common, not as joint tenants. Consequently, the plaintiff was not entitled to sole possession of the entire house. The court reached this conclusion by carefully construing the will to discern the testator’s true intention, applying established canons of will interpretation.
In his reasoning, Luke Ag. J. made the following key points:
Whole Will Context – Confirming Fee Simple: First, the judge noted that, by virtue of the Wills Act 1837, no explicit words of inheritance were needed for the sons to take a fee simple. The will gave the sons the house without limitation, so prima facie each took the full estate in the property (subject to the co-ownership form). There was no indication in the will that the testator intended only a life interest or any lesser estate for the sons. Thus, each son’s interest (whether joint or in common) was of inheritable quality (fee simple absolute). This eliminated any notion that “family property” meant a special estate like a life estate; instead, it pointed toward an intent about how the fee simple is to be held or passed on.
Prima Facie Joint Tenancy: Luke J. acknowledged the baseline rule: if one reads only the first sentence of the clause (“To my natural sons Alimamy Janneh and Mormodu Janneh my house and premises at Jenkins Street in which I presently reside.”), it “gives the impression” of a joint tenancy. By default, an uncomplicated devise to multiple persons simultaneously would make them joint tenants at law. The plaintiff’s argument on this point was valid up to a point – prima facie, a joint tenancy arose. The judge even recited the statement from Jarman on Wills that under such a simple gift, the beneficiaries would normally be joint tenantssierralii.gov.sl.
Effect of “Family Property” – Not Void but Indicative: The crux of the decision turned on the second sentence: “The property is to be used as family property and is in no wise to be sold.” The plaintiff had urged the court to ignore these words as void for uncertainty, especially citing cases involving personalty. However, the judge pointed out a critical distinction: the cases the plaintiff relied on either involved personal property or a mix of personal and real property, whereas the present case dealt exclusively with real estate (land). This was “a circumstance which has been deemed material”sierralii.gov.sl. In the realm of land, the term “family property” does carry an implication – as demonstrated by Lucas v. Goldsmid – tied to inheritance of land in a family line. The judge firmly rejected the notion that “to be used as family property” was too uncertain to have legal effect. Instead, he found it to be a deliberate expression of the testator’s intention that must be given meaning.
Presumption vs Context – Words of Severance: The court cited Halsbury’s Laws and prior cases to frame the principle: although beneficiaries prima facie take as joint tenants, “they prima facie take as joint tenants, but anything which in the slightest degree indicates an intention to divide the property negatives the idea of a joint tenancy”, and in case of ambiguity, the court prefers a tenancy in commonsierralii.gov.slsierralii.gov.sl. Here, the phrase “family property” was exactly such an indication of an intention to divide or at least not to consolidate the ownership in one line. The judge specifically invoked Lord Hatherley’s dictum from Robertson v. Fraser: “anything which in the slightest degree indicates an intention to divide property must be held to abrogate the idea of a joint tenancy.”sierralii.gov.sl He found that the testator’s language about family property, read in context, indicated an intention for the property to be enjoyed by each son’s family respectively, rather than by the sons jointly to the exclusion of their heirs.
Supplying Missing Words – “Respective Families”: To elucidate the will’s meaning, Justice Luke employed a technique from In re Haygarth. He reasoned that the will as drafted was “very vague” and somewhat disjointed, requiring the court to work out the likely intention. He stated that to truly capture the testator’s intention, one might effectively read into the will certain clarifying words. In particular, he suggested that if the words “and their respective families” were inserted after the mention of the sons, the clause would read: “To my natural sons Alimamy Janneh and Mormodu Janneh and their respective families my house and premises at Jenkins Street … The property is to be used as family property and is in no wise to be sold.”sierralii.gov.sl. By mentally inserting “their respective families,” the interpretative thrust becomes clear – each son’s family line is intended to benefit. The judge was careful to note he is not literally rewriting the will, but showing that this reading is consistent with what the testator likely meant by calling it family property. He grounded this approach in authority, quoting Joyce J.’s statement from Haygarth: when a will is ambiguous or incoherent, the court can supply or strike out words to give effect to the testator’s proven intention, which stands above the strict literal wordingsierralii.gov.sl. The testator’s intention, “collected with reasonable certainty from the entire will,” must be honored even if it means going beyond or against the literal textsierralii.gov.sl.
Meaning of “Family” – Inheritance Implication: The judgment drew on the precedent of Lucas v. Goldsmid to interpret the word “family.” The court noted that in cases involving real estate, the term “family” has been consistently held to imply an inheritable line of succession. Romilly M.R.’s dictum in Lucas was quoted: “There is no case relating to real estate in which the word ‘family’ has not been held to imply inheritance, or that species of succession which belongs to inheritance. If a man says, ‘I desire that my estate shall belong to the family of A.B.,’ the meaning is that the property shall be handed down from father to son.” Further from that quote: “The testator does not say that they are to take for their lives, but that the property shall be divided equally between my two sons who shall enjoy the interest thereof.” In other words, describing the property as family property signals that it is meant to remain within the bloodline from generation to generation, not just be enjoyed and then alienated or consolidated by one individual. Luke Ag. J. found this directly applicable: when the testator told his sons to use the house as “family property,” he was invoking that concept of inheritance by their families, not merely giving it to the two men for their personal benefit alone. The clause forbidding sale (“not to be sold”) reinforced that the sons were effectively stewards for their lineage, not absolute owners free to dispose of the property outside the family.
No Contrary Intention to Fee Simple: The judge observed that the testator did not say the sons were to have only life use or anything that would contradict them owning the property outright (aside from the restriction on sale). Instead, he effectively gave them a fee simple but overlaying it with a trust-like moral obligation to keep it in the family. Since the Wills Act 1837 makes that a fee simple, each son’s fee simple would then be constrained only by the intention that each share stay in that son’s family. Thus, tenancy in common – which allows each share to descend to that son’s heirs – perfectly fits this intention, whereas joint tenancy (with survivorship to the other son alone) would defeat it.
Ambiguity Resolved in Favor of Tenancy in Common: Given the ambiguity created by the phrase and the competing interpretations, the court explicitly stated that it “leans to the construction which creates a tenancy in common in preference to that which creates a joint tenancy” in cases of doubtsierralii.gov.sl. The presence of the “family property” instruction was enough to at least create doubt about a joint tenancy, thereby triggering the court’s preference for tenancy in common to avoid an unjust result where one son’s line is disinherited.
Conclusion and Order: Having determined the legal issue in favor of a tenancy in common, Justice Luke answered the framed issue accordingly. He declared that the two sons, Alimamy and Mormodu Janneh, took the Jenkins Street property as tenants in common, each owning an undivided half-interest intended for their respective families. Because of this, the plaintiff could not claim the entire property; the defendant’s side retained their half share. The court thus denied the plaintiff’s claim for sole possession. The formal outcome was effectively a judgment for the defendant on the issue: the will was construed such that the plaintiff was not entitled to exclusive ownership. In practical terms, the action for possession would fail (since the defendant, representing the other tenant in common or his successors, had a lawful right to co-possess the property). The judge concluded with an “Order accordingly,” reflecting that the issue was resolved by declaring a tenancy in common.
It should be noted (though beyond the scope of the trial decision itself) that this ruling was later appealed. The West African Court of Appeal, in Timbo v. Jalloh [1953] SLCA 4, actually took a different view – interpreting “family property” as benefiting the testator’s whole family and thereby favoring a joint tenancy to keep the property intact. The appellate court overturned Luke Ag. J.’s decision and held the sons were joint tenants (meaning the plaintiff’s branch would prevail). However, the analysis above is based on the trial court’s judgment as reported in [1952] SLSC 10, which in itself lays out important principles of will construction and was a significant statement of law at that time.
Key Quotations from Judgment
“Where property is devised to several persons concurrently, the question whether such persons take as joint tenants or tenants in common depends on the context of the whole will. They prima facie take as joint tenants; but … anything which in the slightest degree indicates an intention to divide the property negatives the idea of a joint tenancy, and in case of ambiguity the court leans to the construction which creates a tenancy in common in preference to that which creates a joint tenancy.” (Luke Ag. J., summarizing the common law rule, quoting Lord Hatherley’s dictum in Robertson v. Fraser (1871)).
“Anything which in the slightest degree indicates an intention to divide property must be held to abrogate the idea of a joint tenancy.” (Lord Hatherley, Robertson v. Fraser (1871) 6 Ch App 696 at 699, applied by the court in this case to the phrase “family property”).
“The intention of the testator, which can be collected with reasonable certainty from the entire will, must have effect given to it, beyond, and even against, the literal sense of particular words and expressions. The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words, in cases of difficulty or ambiguity.” (Joyce J., In re Haygarth [1913] 2 Ch 9 at 15, quoted in judgment – underscoring the court’s power to insert or ignore words to fulfill the testator’s intent).
“There is no case relating to real estate in which the word ‘family’ has not been held to imply inheritance or that species of succession which belongs to inheritance. If a man says, ‘I desire that my estate shall belong to the family of A.B.,’ the meaning is that the property shall be handed down from father to son. The testator does not say that they are to take for their lives, but that the property shall be divided equally between my two sons who shall enjoy the interest thereof.” (Sir John Romilly M.R., Lucas v. Goldsmid (1861) 29 Beav 657 at 660, as cited by Luke Ag. J. to interpret “family property” in the will).
“If the words ‘respective families’ are interposed to follow after the devise (i.e., ‘To my natural sons A. Janneh and M. Janneh and their respective families my house and premises…’), the intention of the testator may be nearer approached.” (Luke Ag. J., in Timbo v Jalloh, illustrating how reading in the words “their respective families” clarifies the will’s meaning consistent with the testator’s intent).
These quotations capture the core reasoning: the slightest indication of divisibility (here, the notion of “family property”) will rebut a joint tenancy; the court’s overriding goal is to effectuate the testator’s intent, even if it means reading the will in a non-literal way; and historically, referring to property remaining in the “family” has been taken to mean it should pass by inheritance in each line (hence a tenancy in common).
Ratio Decidendi
The ratio decidendi of Timbo v Jalloh is that when a testator devises property to multiple beneficiaries with an instruction that it be kept as “family property” (and not sold), this language demonstrates a divisible intention and thus creates a tenancy in common rather than a joint tenancy. In general, the case establishes that:
A devise to two or more persons without further qualification is presumed to create a joint tenancy (with unity of title, interest, time, and possession and a right of survivorship). However, if the will contains any indication that the testator intended the beneficiaries to have distinct shares or to benefit their respective families, that indication will operate as a “word of severance,” rebutting the joint tenancy presumption and resulting in a tenancy in common (where each co-owner’s share is separate and passes to his heirs).
The phrase “to be used as family property and not to be sold” in a will is such an indication of severance. It reveals the testator’s intent that the property remain within the beneficiaries’ family lines (inheritable by their descendants), which is inconsistent with one beneficiary potentially acquiring the whole by survivorship. Therefore, in the presence of such a phrase (or similar wording implying familial succession), the beneficiaries will take as tenants in common.
More broadly, the guiding legal principle is that the context and intention gleaned from the entire will determine the nature of co-ownership. The slightest hint of an intention to divide the benefit among different groups (as opposed to a collective benefit) negates joint tenancy. In cases of doubt or ambiguity, courts prefer to find a tenancy in common in order to better carry out likely intent and avoid one branch of a family being unintentionally disinherited.
This ratio was applied to conclude that Alimamy and Mormodu Janneh held the house as tenants in common (each 1/2 share for their lineage). The decision underscores that testamentary words like “family property” will be given substantive effect as severing language rather than being dismissed as precatory or uncertain, at least in relation to real property.
Obiter Dictum
The judgment also contained observations that, while not strictly necessary to decide the issue, provide insight into will-construction principles and the court’s approach to informal wills. Notable obiter dicta include:
“Bogus Will” and Layman Drafting: Justice Luke remarked that the will in question was one of the many wills “drawn by laymen” and – borrowing the defense counsel’s phrasing – “a bogus will.” By this he meant it was inartfully drafted, lacking formal clarity. He noted there was “no controversy” on that fact. This observation set the stage for the court’s willingness to be flexible in interpretation. Essentially, because the will was homemade and imprecise, the court felt it “necessary to explore all the known canons of construction” to divine the testator’s intent. This comment is obiter in that it comments on the quality of the will and the approach generally required for such informal wills, beyond the specifics of this legal issue.
Wider Family vs. Respective Families: In the process of interpretation, the judge noted that the testator had other children besides the two sons named. He pointed out (in context of the later appeal discussion) that the phrase “family property” could theoretically refer to the testator’s entire family (all children) or to the sons’ families. Luke Ag. J. assumed it meant the latter (respective families of the devisees) and added “respective” in interpretation. An obiter contrast can be drawn: he implicitly rejected the idea that “family property” meant common property of all the testator’s children or a general family trust, since the gift was expressly only to two sons. Instead, his interpretation (tenancy in common to respective families) was considered the only logical one. This reasoning was central to his decision but also anticipates the appellate view (which differed, thinking it meant whole family). His explanation of why “respective families” makes sense was an obiter clarification of what “family” should be taken to mean in this context (the lineage of each beneficiary, not the testator’s broader family).
Distinguishing personalty cases: The judge’s discussion that two of the plaintiff’s cited cases dealt with personal property and that Doe d. Hayter v. Joinville involved mixed property can be seen as obiter observations to guide why those precedents were not followed. He suggested that words like “family property” might be too uncertain for personalty, but for land they have a recognized meaning tied to inheritance. This distinction, while not strictly necessary to decide (since even without those cases, he found an intent), provides future guidance: instructions about “family property” may carry more weight in real estate contexts than in personalty, a nuance drawn from prior dicta.
Caution on Sale Prohibition: Although not explicitly stated in the summary, it is implicit that the judge treated the “not to be sold” clause as reinforcing the family intent, rather than as creating a binding trust or condition. One might glean an obiter point that such a restraint on alienation (“in no wise to be sold”), if taken literally, could be void or problematic. However, the judge did not need to rule on its enforceability as a condition. Instead, he read it as evidencing motive (to keep the home in the family). This subtle treatment – using “not to be sold” to infer intention without directly enforcing a no-sale restraint – is an obiter illustration of how courts handle informal prohibitions on alienation: by construing them in line with intent (tenancy in common here) rather than voiding the gift.
These dicta collectively highlight the court’s pragmatic and familial approach to will interpretation. The judge’s commentary on layman’s wills and the need to sometimes supply words serves as guidance beyond this case: courts will work with imperfect language and lean in favor of interpretations that uphold family succession and intentions over formalistic defaults.
Final Orders / Reliefs Granted
Declaration of Tenancy in Common: The court declared that the devise in Clause 1 of Jallah Janneh’s will gave the two sons, Alimamy Janneh and Mormodu Janneh, the house at 12 Jenkins Street as tenants in common, not as joint tenants. Each son was thus entitled to an undivided one-half interest in the property, with full rights for each share to pass to that son’s heirs upon death.
Plaintiff’s Claim Dismissed: In effect, the plaintiff’s action to recover sole possession was dismissed. Since the defendant (representing the other co-owner’s estate) had an equal right to the property, the plaintiff could not oust him. The court’s order confirmed that the plaintiff was not entitled to exclusive ownership or possession. The specific phrasing in the report is “Order accordingly,” reflecting that judgment was entered on the preliminary issue in favor of the defendant’s position.
Costs: Although not explicitly stated in the available summary, typically the losing party (plaintiff) would be liable for costs. It can be inferred that the court likely awarded costs against the plaintiff, or ordered that costs be in the cause. (The report doesn’t detail costs, but since this was a decisive issue, the defendant as the successful party would normally receive costs of the action.)
No Other Relief: No damages or further relief were at stake in this case – it was purely about declaratory relief and possession. The final outcome maintained the status quo of co-ownership, meaning the defendant (and the family he represented) could remain in the property as co-owner. The property was to continue being “used as family property” by both branches in common, consistent with the will (and not sold out of the family unless both sides agreed, presumably).
The orders of the trial court stood until the appellate decision in 1953, which reversed the declaration. After the appeal, the final resolution was that the plaintiff’s side got sole title (joint tenancy via survivorship affirmed). But again, for the trial stage, the relief was a declaration of tenancy in common, protecting the defendant’s interest and denying the plaintiff sole ownership.
Commentary / Practice Note
Significance: Timbo v Jalloh is a landmark Sierra Leonean case on the construction of wills and the law of co-ownership. It illustrates how courts balance default legal rules with the specific intentions of a testator, particularly in family contexts. For practitioners, the case underscores the importance of clear drafting in wills to avoid litigation over “joint tenancy vs tenancy in common,” and it demonstrates the court’s willingness to interpret even vague provisions in a will in a sensible, intention-effecting manner.
Joint Tenancy vs Tenancy in Common: These are two fundamental forms of concurrent ownership in property law:
A joint tenancy treats all co-owners as collectively owning the whole property together, with the defining feature of the right of survivorship. Upon the death of one joint tenant, his interest vanishes and the entire property vests in the surviving joint tenant(s). Joint tenants have equal interests and must acquire title under the same instrument and time (the “four unities” requirement).
A tenancy in common, on the other hand, gives each co-owner a distinct (though undivided) share in the property. There is no right of survivorship – each tenant in common’s share will pass under his will or intestacy to his heirs. Tenants in common can have unequal shares and their interests can arise at different times.
The default position at common law for a devise or conveyance to multiple persons without further specification is to create a joint tenancy (especially in older cases and under common law presumptions). Equity and modern statutes, however, often lean toward tenancy in common because it’s considered less harsh (it doesn’t cut out a deceased co-owner’s heirs). Many jurisdictions today (including England since the 1925 property legislation, and likely Sierra Leone by statute or influence) presume a tenancy in common in absence of clear intent to create a joint tenancy. In wills, even historically, courts have been more inclined to find a tenancy in common if any ambiguity exists, because testators are not presumed to intend disinheritance of a branch of their family through survivorship.
Construction of Wills – Intent is Paramount: Timbo v Jalloh exemplifies the cardinal rule of will interpretation: the testator’s intention is the governing factor. The court will read the entire will and apply established canons of construction to give effect to that intention, as long as it is lawful. The case shows several interpretive tools in action:
Contextual reading: The will must be read as a whole. Seemingly general phrases can be colored by specific instructions elsewhere. Here, “to my sons” was colored by “family property, not sold” in the same clause.
Technical defaults vs. contrary intention: Technical rules (like the joint tenancy default or that words of inheritance are needed for fee simple) yield to a contrary intention apparent from the will. Section 28 of the Wills Act 1837 simplified one aspect (no need for “heirs” to give fee simple), but left intact the question of joint vs common, which depends on intention.
Words of Severance: Phrases like “equally,” “between,” “share and share alike,” or as in this case “family property [not to be sold]” are considered words of severance – they indicate division of either the property or the enjoyment. Even subtle phrasing can qualify. Robertson v Fraser (1871) remains a leading authority for the proposition that any indication of an intent to divide will sever a joint tenancy. Practitioners should thus be alert that even non-technical language can alter the form of co-ownership.
Favoring Tenancy in Common: The case reaffirms that when in doubt, a tenancy in common is often preferred by courts in construction. This aligns with the equitable principle that “equality is equity” and avoids accidental disinheritance. For example, English courts often say they lean against joint tenancies in wills unless clearly intended (this is sometimes called the “rule in Lake v. Craddock” in contexts like business partnerships or where fairness dictates separate shares).
“Family Property” in Sierra Leone: The term “family property” can also resonate with local customary concepts, but in this case it was interpreted within an English law framework. In Sierra Leone (and many African jurisdictions), “family property” often refers to property held communally by a family or lineage, inalienable without family consent. While this was an English-law will case, the court’s interpretation dovetailed with the idea that the property should remain in the family line. Lawyers drafting wills in Sierra Leone should be cautious using terms like “family property” without clear definition courts will strive to give it meaning, possibly creating unintended co-ownership structures or restrictions. If a testator wants a true joint tenancy (with survivorship) or, conversely, a tenancy in common, the will should state so explicitly (e.g., “to A and B as joint tenants” or “to A and B in equal shares as tenants in common”) to avoid any doubt.
Comparative Perspective: The principles in Timbo v Jalloh are rooted in common law and thus have parallels in other jurisdictions:
In English and Commonwealth jurisprudence, words denoting that beneficiaries are to enjoy property “for the benefit of their families” or that property is not to be sold often lead courts to infer a tenancy in common or a trust. For instance, in some Indian and Nigerian cases, similar wording has been treated as creating a family beneficial interest.
Robertson v Fraser (Canada/UK, 1871) and In re Wooley (UK, 1903) are part of a long line of cases where adding words like “respectively” or “among” changes the result to tenancy in common. Practitioners worldwide still cite these when debating joint or common in ambiguous instruments.
Conversely, the West African Court of Appeal’s reversal (1953) of this case took a slightly different interpretive stance: it thought “family property” meant the testator’s family as a whole and that joint tenancy better preserved that (since the survivor would presumably hold it in trust for family or at least not allow half to go to possibly a spouse or outsider of one son’s line). This view was arguably less in line with English precedent but was based on what that court perceived as the testator’s concern that the house never leave his immediate family. The appellate decision can be seen as a reminder that intent can sometimes be construed differently by different courts—some might see “family” in a broader sense. Ultimately, however, modern law tends to favor express tenancies in common unless a will explicitly says “joint tenants” or uses clear survivorship language.
Drafting Lessons: For will-drafters and estate planners, Timbo v Jalloh provides a clear lesson: ambiguity in co-ownership provisions can lead to protracted litigation and unintended outcomes. If a testator wishes multiple beneficiaries to own property together:
If the intent is joint tenancy (perhaps to ensure the survivor gets everything, avoiding fragmentation), the will should explicitly state “as joint tenants with right of survivorship, and not as tenants in common.” Otherwise, even innocuous phrases might defeat that intent.
If the intent is tenancy in common (each beneficiary’s share to pass to their heirs), it is wise to state “as tenants in common, in equal shares” or similar wording. Relying on a term like “family property” without clarification is risky, as seen here. Such wording might achieve the goal but will invite judicial interpretation.
If the testator’s goal was to create a trust-like arrangement (e.g., let my children live in the house and keep it for the family without sale), the will should perhaps establish an express trust or life estate with remainder to grandchildren, etc. In Timbo, the testator’s likely intent could have been accomplished by giving the sons life interests and then remainder to their children (grandchildren of testator), or by a trust that the property be held for benefit of descendants. Because he did not do that formally, the court had to approximate with a tenancy in common.
Related Sierra Leonean Cases: Timbo v Jalloh (trial and appeal) itself remains a key precedent in Sierra Leone on will interpretation. Subsequent local cases have cited it especially on the meaning of “family property.” For example:
Johnson v Roberts (1953) (reported at 1950-56 ALR S.L. 311) dealt with a similar question and followed the approach that absent clear severance words, joint tenancy can result – though the facts differed, it shows that these issues were not uncommon in mid-20th century Sierra Leone.
Wright v Alieu Mustapha (1965) 1964-66 ALR S.L. 171, though a bit later, touched on family property concepts (in a different context) and reflects the continuing importance of distinguishing individual vs family ownership.
In modern times, customary law often treats family land as communally owned. While Timbo was decided under general (English-derived) law, its spirit resonates with the customary notion that certain properties are meant to benefit extended family and should not be alienated. However, customary family property typically involves all family members by lineage, whereas here the court still operated within the will’s confines (only two sons and their lines).
Practice Note: When litigating a will construction:
Gather evidence of the will’s context: Although direct extrinsic evidence of intent (like the testator’s statements) is usually inadmissible, knowing the family situation (e.g., existence of other children, the significance of the property as an inheritance home) can help frame arguments about intent.
Check for statutory modifications: Some jurisdictions have statutes altering presumptions (for example, some have reversed the old common-law presumption so that a gift to two or more persons in a will is assumed to be a tenancy in common, absent contrary intent).
Argue policy: Courts may be swayed by the fairness of an outcome. In Timbo, the trial judge clearly was concerned that one son’s family would be unfairly cut out if he ruled joint tenancy. Emphasize which interpretation avoids unjust enrichment or fulfills a moral expectation. Conversely, if representing the side favoring joint tenancy (perhaps the survivor), focus on the exact words used and that the testator could have said “and their families” but didn’t meaning perhaps he trusted the sons jointly to keep it for the family (the stance the appellate court took).
Comparative Discussion – Joint Tenancy, Tenancy in Common, Wills: It is instructive to compare Timbo v Jalloh with a few other seminal cases:
In Robertson v Fraser (1871, English Chancery), a will gave residue to three people with some indication of shares in a codicil. The court held it was a tenancy in common, coining the principle about any indication of division. Timbo’s trial court leaned heavily on this reasoning.
In In re Woolley (1903), a testator left property to grandchildren, and the court had to decide joint or common. It concluded tenancy in common, stating a general preference against joint tenancy in wills. Timbo cited this case to fortify the point that equity presumes tenancy in common unless a joint tenancy is clearly intended.
In re Hutchinson and Tenant (1879) is another English case (not explicitly cited in Timbo) where a gift to beneficiaries “equally” or as “joint tenants” has been parsed; it famously held that even the phrase “equally” will make them tenants in common. Although not in Timbo, it’s part of the same doctrinal tapestry.
The appellate decision of Timbo v Jalloh (WACA, 1953) as noted, reached the opposite conclusion – it’s a rare instance where a higher court saw the intention differently. That judgment by Smith C.J. (Sierra Leone) reasoned that the testator intended to benefit his whole family (which included all children beyond the two sons) as far as possible, and thought joint tenancy did not actually defeat that because the survivor would presumably hold it for the family (this part is arguably less clear in logic). The WACA held it was “doing violence to the language” to infer tenancy in common, and allowed the appeal, declaring a joint tenancy. For students, this is a fascinating example of how the same words can be interpreted diametrically opposite ways by two courts – highlighting the inherently interpretive nature of will construction.
In conclusion, Timbo v Jalloh (1952) remains a foundational case in Sierra Leone for will interpretation regarding concurrent interests. It aligns largely with common-law principles from England while also reflecting a sensitivity to the familial context of Sierra Leonean society. The case advises drafters to be precise and advises judges to be flexible in reading wills to honor the testator’s familial intent. Subsequent cases and practice have validated the importance of clearly stating one’s intentions in a will – especially when intending to create (or avoid) survivorship arrangements. From a teaching standpoint, the case is an excellent study in the clash between formal legal defaults and equitable/familial considerations, and it demonstrates how judges reason through ambiguity using both logic and precedent.
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Categories: Wills and Probate; Property Law; Real Estate Law
Tags: tenancy in common; joint tenancy; construction of wills; intestate succession
Sample Legal Questions (Objective Test)
The primary legal issue in Timbo v Jalloh was whether the two sons named in the will held the property as:
A. Joint tenants.
B. Tenants in common.
C. Trustees for the family.
D. Life estate holders.Under common law principles, a devise of real property “to A and B” with no further description is presumed to create:
A. A joint tenancy in fee simple.
B. A tenancy in common, each with 50%.
C. A trust estate.
D. A life estate for A and B.In the will at issue, the testator directed that the house:
A. Be sold and the proceeds divided among family members.
B. Be used as family property and not sold.
C. Go only to his eldest son, excluding the younger.
D. Be donated to a charitable trust for the family.The plaintiff in Timbo v Jalloh argued that the will’s effect was to:
A. Create a joint tenancy, giving him sole ownership by survivorship after his co-tenant’s death.
B. Create a tenancy in common, giving him only a half share.
C. Establish a family trust with both parties as trustees.
D. Give each son merely a life interest, reverting to the estate on death.The defendant in Timbo v Jalloh contended that the testator’s intention was to:
A. Benefit each son’s respective family, meaning the sons held as tenants in common.
B. Benefit the family as a whole through a joint tenancy between the sons.
C. Give the entire property to whichever son outlived the other.
D. Render the gift void for uncertainty due to the term “family property.”Which of the following authorities was NOT cited in the Timbo v Jalloh judgment?
A. Robertson v. Fraser (1871) – a case on joint tenancy.
B. In re Haygarth (1913) – a case on will construction.
C. Donoghue v. Stevenson (1932) – a case on negligence.
D. Lucas v. Goldsmid (1861) – a case on the meaning of “family” in wills.According to the trial judge in Timbo v Jalloh, a court may add or omit words in a will if doing so is necessary to:
A. Clarify the testator’s intention from the will as a whole.
B. Ensure the will complies with formal requirements.
C. Increase the share of each beneficiary equally.
D. Punish or reward certain beneficiaries’ conduct.Which feature is characteristic of a joint tenancy in property?
A. The right of survivorship (the surviving co-owner automatically acquires the deceased’s share).
B. Distinct, separate shares that pass to each owner’s heirs.
C. Requirement that co-owners be related family members.
D. No ability for one co-owner to ever sever or end the co-ownership.The trial court interpreted the phrase “to be used as family property” in the will to mean that:
A. Each son’s family line should inherit that son’s share, indicating a tenancy in common.
B. The two sons should hold the property jointly for the benefit of the entire family line.
C. The property was to revert to the family estate on the sons’ death.
D. The sons had only a license to use the property, not ownership.On appeal, the West African Court of Appeal in Timbo v Jalloh concluded that:
A. The sons took as joint tenants, as this benefited the testator’s whole family by keeping the property unified.
B. The sons took as tenants in common, affirming the trial court’s decision.
C. The will was too uncertain to enforce, so the property fell to intestacy.
D. Both sons’ families should continue to co-own the property indefinitely under court supervision.
Answer Key:
A (Joint tenants vs tenants in common was the central question – the issue was which of the two).
A (By default a gift to A and B with no qualifier creates a joint tenancy at common law).
B (The will explicitly said it was to be used as family property and not sold).
A (The plaintiff argued it was a joint tenancy, thus he gets sole title by survivorship).
A (The defendant argued it was intended for each son’s family – a tenancy in common).
C (Donoghue v Stevenson was unrelated to wills or property and not cited).
A (The court can supply or omit words to give effect to the testator’s clear intention).
A (Survivorship is the hallmark of joint tenancy; in contrast, distinct shares passing to heirs describe tenancy in common).
A (The trial judge read “family property” as implying each son’s respective family should benefit – hence tenants in common).
A (The WACA reversed the trial court, holding the sons were joint tenants to benefit the testator’s whole family line by not splitting the property).
Essay Questions (Analytical Discussions)
1. Discuss how courts determine whether a devise to multiple beneficiaries in a will creates a joint tenancy or a tenancy in common. In your answer, explain the default rules and the significance of any words of severance, and illustrate with references to Timbo v Jalloh (1952) and relevant case law.
Answer: Courts faced with a devise (gift in a will) to multiple beneficiaries must ascertain the testator’s intention regarding the form of co-ownership – specifically, whether the beneficiaries take as joint tenants or tenants in common. The distinction is crucial: joint tenants have equal undivided ownership with the right of survivorship (when one dies, his interest disappears and the entire property belongs to the survivor), whereas tenants in common each hold a distinct share that can pass to their heirs (no survivorship).
The starting point is often a default rule or presumption. Historically, under English common law, a conveyance or devise to “A and B” without more was presumed to create a joint tenancy. This was encapsulated in authorities like Jarman on Wills, which states that a devise to multiple persons “simply” (i.e., not saying “in shares” or similar) makes them joint tenants. The rationale is that early common law favored joint tenancy’s simplicity and the four unities (time, title, interest, possession) were automatically satisfied by a single instrument. However, equity and modern statutes have moderated this: equity would often interpret as tenants in common in certain contexts (e.g., business partners) to avoid unfairness, and many jurisdictions have statutes (or will interpretation acts) that favor tenancies in common unless a joint tenancy is clearly intended.
In absence of a statutory presumption to the contrary, courts still use common law canons, but they look for “words of severance” or any language indicating division. Words of severance are expressions in the will that signal the testator intended the co-owners to have separate shares. Classic examples include: “in equal shares,” “share and share alike,” “to be divided between them,” or reference to “respective” something. Even a word like “between” A and B has been held to imply a tenancy in common (as in Fleming v. Brook or other old cases). On the other hand, using the phrase “jointly” or “as joint tenants” explicitly will ensure a joint tenancy.
Timbo v Jalloh [1952] SLSC 10 is an instructive example. There, the will gave a house to two sons and added that it was to be used as “family property” and not sold. The default reading of “to my two sons [my house]” would be a joint tenancy (especially given it was a single familial gift). But the court zeroed in on “family property” as a crucial phrase. Justice Luke explained that “anything which in the slightest degree indicates an intention to divide the property negatives the idea of a joint tenancy.” This line he quoted from Robertson v Fraser (1871), a leading case. In Timbo, “family property” was not a typical technical term, but the court interpreted it as an indication that the testator wanted the property to stay within each son’s family line (i.e., that each son would pass his interest to his children, etc.). That was incompatible with a joint tenancy (where one son’s death would give the whole to the other son, cutting out the deceased’s children). Therefore, the court held it created a tenancy in common.
This illustrates the general approach: determine the testator’s intention from the will’s language and context. If the will is silent or purely neutral, apply the default (which may be joint tenancy, or tenancy in common depending on jurisdiction). If any expression suggests separate enjoyment or inheritance, treat it as tenancy in common. Courts often say they “lean” in favor of tenancy in common where there is ambiguity. Halsbury’s Laws notes that in cases of ambiguity the construction creating a tenancy in common is preferred, as it avoids accidental disinheritance.
Case law supporting this approach includes:
Robertson v Fraser (1871): Lord Hatherley’s dictum that any indication of division rebuts joint tenancy. In that case, even a slight indication led to finding a tenancy in common.
In re Woolley (1903): Equity presumed tenants in common absent clear joint tenancy intent; grandchildren in that case took as tenants in common since the will suggested that outcome.
Williams v Hensman (1861) (though about severance methods, it reiterates that joint tenancy is disfavored if intention is unclear).
Timbo v Jalloh itself at trial showed a court willing to insert interpretative words (“respective families”) to make clear the shares, thus confirming tenancy in common.
On the other hand, if a will clearly indicates joint tenancy, courts will uphold it. For example, if a will said “to my two sons jointly, and to the survivor of them,” that expressly creates a joint tenancy (with an added survivorship clause). Or if the will uses the phrase “joint tenants,” there’s no ambiguity.
In summary, courts determine the form of co-ownership by reading the entire will, applying presumptions, but above all looking for the testator’s intent. If any words indicate an intent to give distinct shares or benefit separate groups (as “family property” did by implying two families), they will declare a tenancy in common. If the will is completely silent on how to hold and there’s no contextual clue, the historical default might apply (joint tenancy, except where modern law reverses it). The guiding star is avoiding an interpretation that the testator likely did not intend. In Timbo, it was unlikely the testator wanted one son’s family to lose out entirely, so the court found tenancy in common to honor that probable intention. This methodology is consistent across common law jurisdictions, even as the default presumptions may be adjusted by local law.
2. Analyze the significance of the phrase “to be used as family property and not sold” in the will from Timbo v Jalloh. How did the courts interpret this phrase differently at trial and on appeal, and what does this reveal about the principles of will construction?
Answer: The phrase “to be used as family property and not sold” was the focal point of interpretive debate in Timbo v Jalloh. Its significance lies in how it guides (or confounds) the understanding of the testator’s intent for the devised house.
At the trial level, Justice Luke treated this phrase as a critical indicator of intent – essentially a key to unlocking whether the co-owners were joint tenants or tenants in common. He interpreted “family property” to mean that the property was intended to be kept within the family lineage of the beneficiaries, and the prohibition “not to be sold” reinforced that it was not to be alienated outside the family. In his view, this instruction implied that each son was not meant to treat the property as his individually alienable asset, but rather to hold it for the benefit of his descendants (the testator’s grandchildren and further issue).
By reading “family property” in that manner, the trial court found that the testator must have intended a tenancy in common. Why? Because only a tenancy in common would allow each son’s share to descend to that son’s children (keeping it in the family). If it were a joint tenancy, when one son died, the other son alone would own the whole property and the deceased’s children would get nothing – the property could even leave that branch of the family entirely if the surviving brother later left it to someone else or that brother’s own family only. Such an outcome would contradict the notion of it being for both families. Thus, at trial, “family property” was seen as a severance phrase: it split what otherwise might have been a joint tenancy into two familial shares.
The trial judge even went so far as to say if you add the words “their respective families” after naming the sons, it captures the will’s meaning. That is an interpretive gloss on “family property.” Moreover, the phrase “not sold” was taken as consistent with that – if each branch is to keep the property, naturally it shouldn’t be sold out of the family. (Notably, the judge didn’t enforce “not sold” as a strict legal condition – such restraints can be void – but rather as evidence of intention.)
On appeal, the West African Court of Appeal (WACA) interpreted the phrase quite differently – almost the opposite emphasis. The appellate court agreed the phrase was significant, but concluded it pointed to a joint tenancy. The reasoning given by Smith C.J. (as gleaned from reports) was that the testator, by saying “family property,” was referring to his own family as a whole – i.e., the property was to remain within the entire family (all descendants). They noted the testator had other children beyond the two sons; presumably, they thought “family property” was meant in a broad sense that the home would be a sort of indivisible family house. Under this view, letting the two sons hold it as joint tenants would actually better serve that purpose because the survivor would hold the property intact (not split into two separate titles) and ostensibly maintain it for the family. The WACA felt that reading the phrase to mean “respective families” of each son (as the trial judge did) was “doing violence to the language” – in their opinion, the testator didn’t explicitly say “respective families,” he said “family” (singular), which could mean the family collectively.
This divergence reveals a lot about will construction principles:
First, it underscores that context and perspective matter. The trial court looked at “family property” from the perspective of each beneficiary’s lineage (perhaps influenced by common law precedent that “family” often means issue of that person in wills). The appellate court looked at it from the testator’s vantage point – his family unit as a whole. Both are plausible, which shows how ambiguous such a term can be.
Second, it highlights that different courts weigh presumptions differently. The trial judge leaned on the equitable presumption against joint tenancies in ambiguous cases (favoring tenancy in common if any doubt). The appellate court might have been more inclined to uphold the literal reading of the first part of the clause (“to my two sons”) as joint tenancy, only modifying it if absolutely necessary. In essence, WACA might have given more weight to the plain meaning of “to my sons” = joint tenancy, whereas Luke Ag. J. gave more weight to the “family property” modifier.
Third, it reveals that phrases like this are inherently open to interpretation – they are not technical legal terms with fixed meaning. “Family property” doesn’t appear in statute; it’s a colloquial expression of intent. Therefore, judges may legitimately differ on what the testator intended. It is a reminder that appellate courts can and will overturn will constructions if they think the first judge misapprehended the intent.
The appellate interpretation arguably placed faith in the survivor of the joint tenancy to carry out the “family” purpose (perhaps assuming that the surviving son would hold it for the benefit of all or at least keep it as a family home). The trial interpretation was more concrete in ensuring each branch had legal rights.
From a principles standpoint, both courts purported to follow the prime directive of will construction: effectuate the testator’s intent. The discrepancy came in determining whose family or what scope of family the testator had in mind. The trial court’s principle: if the wording is at all consistent with separate shares, avoid joint tenancy to protect family lines (especially since joint tenancy could undermine one family line entirely). The appellate court’s principle: don’t insert words that aren’t there (“respective”), and consider that the testator might have wanted the property never to be partitioned at all but to remain one entity (hence joint ownership).
Another principle highlighted is how courts treat restraints on alienation like “not sold.” Both courts didn’t strike it as void; instead they used it as a clue. The trial court saw “not sold” as consistent with not allowing an outsider to ever buy it – which would happen if one son could sell his share (tenancy in common allows sale of shares). Interestingly, joint tenancy with survivorship also prevents inter vivos sale of a deceased’s share (because the share doesn’t pass by inheritance at death), but a joint tenant can sell or sever during life, which would destroy the joint tenancy. The will said “not sold,” which neither interpretation fully enforces unless we imagine a moral injunction. A tenancy in common could abide by “not sold” if each family just chooses not to sell; a joint tenancy could abide by it until one co-owner tries to sever. Both courts likely saw “not sold” as a non-binding wish (precatory) but indicative of the desire that the home remain in the family line. This reveals that courts will give effect to the spirit of such clauses under intent, rather than the letter (since an outright prohibition on sale is usually unenforceable beyond a certain point).
In summary, “to be used as family property and not sold” was pivotal. The trial court read it as an implicit severance, creating a tenancy in common for each family branch – prioritizing the continuity of each son’s bloodline in ownership. The appellate court read it as an intent to keep the property as one indivisible family heirloom, favoring a joint tenancy – prioritizing the unity of the asset for the broader family. The different interpretations illustrate the delicate task of will construction: courts may come to opposite conclusions while both claiming to uphold the testator’s intent. It also highlights why it is so important for will-drafters to avoid ambiguous phrases. A single vague phrase can lead to years of litigation and diametrically opposed judicial views.
For students of law, this scenario is a classic example of ambiguity in wills and how appellate review works: if intent is a question of interpretation, a higher court might substitute its judgment. The key takeaway principle is that ambiguous terms in wills (like “family property”) will be analyzed in context, and courts will earnestly try to make them meaningful rather than ignore them. The phrase’s interpretation will hinge on whose “family” is meant and what estate configuration best aligns with keeping the property in that family sphere.
3. Compare and contrast joint tenancy and tenancy in common, particularly in the context of inheritance and wills. Use examples from Timbo v Jalloh and other relevant cases to illustrate when each form of co-ownership is likely to be intended or presumed.
Answer: Joint tenancy and tenancy in common are two distinct forms of co-ownership of property, each with different legal characteristics and implications for inheritance:
Joint Tenancy: The co-owners (joint tenants) are regarded together as a single owner of the whole property. Four unities are traditionally required: time, title, interest, possession. The hallmark of joint tenancy is the right of survivorship (jus accrescendi) – when one joint tenant dies, his interest is not passed via will or intestacy; it extinguishes, and the surviving joint tenant(s) continue to own the whole. In life, a joint tenant can sever the joint tenancy (e.g., by transferring his interest, which converts it into a tenancy in common), but until severed, no joint tenant holds a specific share separately. Joint tenants have equal interests by definition (you can’t have one joint tenant owning 2/3 and another 1/3; each owns an identical undivided whole).
Tenancy in Common: Co-owners hold separate, undivided shares in the property. There is unity of possession (each can use the whole property), but the unities of time, title, and interest can be absent – one tenant in common might have acquired their share at a different time or via a different instrument, and shares can be unequal (e.g., one might own 70%, the other 30%). Crucially, there is no right of survivorship. When a tenant in common dies, their share passes according to their will or by intestacy to their estate/heirs. Tenancy in common thus preserves each co-owner’s ability to control the ultimate disposition of their interest.
In context of inheritance and wills:
The form of co-ownership determines what happens on death of one owner, which is why it’s so important in wills. With joint tenancy, a will provision by one joint tenant purporting to leave his interest to someone is inoperative if at death he was a joint tenant and another joint tenant survives – because his interest never becomes part of his estate, it goes automatically to the survivor. In tenancy in common, each co-owner’s will can effectively dispose of their share to their beneficiaries.
Presumptions in wills: Historically, if a will said “to A and B” without more, courts might lean towards joint tenancy as the default (especially older cases). However, wills have long been treated a bit differently from inter vivos transfers – courts often suspect that a testator did not intend, unless clearly stated, to disinherit the family of a deceased beneficiary. As a result, there has been a tendency to find a tenancy in common if the will contains any suggestion of that intent, or sometimes even in the face of silence (depending on jurisdiction and era).
For example, English law evolved to where even slight indications like “equally” make it tenancy in common. In modern statutes (like UK’s Administration of Estates Act for intestacy, or some states’ wills acts), a disposition to multiple persons is often deemed to be a tenancy in common unless the will expressly says joint tenancy. Some jurisdictions have an explicit statutory presumption of tenancy in common in wills. Sierra Leone, inheriting common law, followed the older default but the equitable leaning as seen in Timbo.
When each is likely intended or presumed:
Joint Tenancy Intended: Usually when a testator wants property to go to a group and then ultimately to whichever of them survives longest. Common scenarios: spouses often hold marital homes as joint tenants so that when one dies, the other automatically owns it fully without probate for that share. If a will leaves property “to my wife and my son as joint tenants,” it would be unusual, but if clearly stated, the intent is survivorship (perhaps so that if wife dies first it goes to son entirely, and if son dies first it goes to wife entirely). Another scenario might be if a testator wants to create a joint tenancy to avoid fragmentation: e.g., “to my three children as joint tenants” if he explicitly says so, meaning he might want the last surviving child to take all (maybe thinking that then it will be simpler to keep the property intact and then that survivor can distribute to grandkids or so). However, joint tenancy among children is rarer unless explicitly stated, as it’s a bit like picking winners by longevity unintentionally.
Joint tenancy is often presumed in inter vivos conveyances to two or more people who are not related (unless a contrary intention is shown) at common law, but less so in wills. If a will uses words “jointly” or references survivorship, that clinches it. Also, if a will leaves property to a husband and wife, some jurisdictions have presumptions (like tenancy by entirety or joint tenancy by entirety) as they assume spousal joint ownership.
Tenancy in Common Intended: If the testator uses any language about shares or about families. For example, “I leave Blackacre to my two sons, to be divided equally between them” – “divided equally” clearly indicates a tenancy in common (each gets 50%). Or “to A and B in equal shares, absolutely” – again tenancy in common. If the will is aimed at ensuring each branch of the family gets something, tenancy in common is the likely intent.
In Timbo v Jalloh, at trial, tenancy in common was found because the phrase “family property” was interpreted as indicating the testator cared about each son’s progeny inheriting. The judge cited instances (cases like Lucas v Goldsmid) where when property was said to belong to someone’s “family,” courts treat it akin to saying “and then to their children” – effectively a tenancy in common or a trust for families.
Another example: In re Woolley (1903) – a case where a testator left property to multiple grandchildren. The court found a tenancy in common, reasoning that in absence of explicit joint tenancy language, and given the nature of the gift, the testator probably intended each grandchild (or their line) to have a share rather than a survivorship race among them.
Why the differences matter in wills: With joint tenancy, one beneficiary could theoretically get everything if others predecease. With tenancy in common, if one beneficiary dies (even shortly after the testator), that beneficiary’s share goes to his estate (maybe to his children or spouse).
To illustrate: Suppose a will says “I leave my house to my two sons, X and Y.” If interpreted as a joint tenancy, and if X dies a year after the father (testator), then Y ends up with the whole house – X’s children (the testator’s grandkids) get nothing of that house. If interpreted as tenancy in common, X’s 50% would go via X’s will (or intestacy) likely to X’s kids or spouse, meaning the grandkids still have their father’s share of grandpa’s house. Which did grandpa intend? Often, grandpa would want each son’s family to ultimately have a portion. Joint tenancy might accidentally disinherit one branch if one son dies early.
Courts in Timbo wrestled with exactly that: the trial court thought the testator definitely wouldn’t want one side of the family entirely cut out – hence tenancy in common. The appeal court thought the testator was more concerned about the home staying within the family as a whole and not being split or sold – they believed joint tenancy (with survivorship) better achieved that at least initially.
Relevant cases:
Williams v. Williams (a hypothetical Sierra Leone case for example) – not a real citation here, but often any case where wording “in equal shares” appears will hold tenancy in common.
Barnes v. Phillips (UK 2015, not about wills but co-ownership): reaffirms that absent express wording, context will decide if joint or common.
Lake v. Craddock (1732): partnership property assumed tenancy in common, a rule of construction.
Statutory: In many US states, a devise to multiple people is presumed tenants in common unless stated as joint (this reverses common law for wills).
In summary, joint tenancies in wills are generally only if clearly expressed or very strongly implied (like to spouses or with survivorship language), whereas tenancies in common are the safer assumption when any doubt exists. Timbo v Jalloh shows that even an unusual phrase like “family property” swung the interpretation to tenancy in common (at least at first instance), because it hinted at an intent inconsistent with survivorship.
From a planning perspective, if a testator wants a joint tenancy, they should say so explicitly (“joint tenants, with right of survivorship”). If they want tenancy in common, phrases like “equally” or “to be shared among” or simply listing percentages can be used. If they use ambiguous terms, courts will apply the above principles to deduce intent, often leaning towards tenancy in common for fairness unless the will instructs otherwise.
4. What role did the testator’s intention play in Timbo v Jalloh? Discuss how the court can infer intention from a will’s language and even alter or supply words to effectuate that intention, citing the judgment and relevant authorities on will interpretation.
Answer: In Timbo v Jalloh, as in virtually all will-construction cases, the testator’s intention was the lodestar guiding the court’s decision. Courts repeatedly emphasize that “the guiding principle in construing a will is to ascertain the testator’s intention from the words used, read in the light of the surrounding circumstances, and to give effect to that intention as far as legally possible.” In this case, both the trial court and the appellate court were striving to implement what they believed Jallah Janneh intended in leaving his house to his sons as “family property.”
Justice Luke (trial judge) put such weight on intent that he was willing to supply missing words or omit words in order to give effect to it. This is somewhat unusual, as courts typically stick to the text, but there is a well-established doctrine in will interpretation that if the overall intention is clear, minor changes can be made to the verbiage to carry it out (sometimes called the “false Latin rule” – falsa demonstratio – or just general maxims of construction). Luke Ag. J. invoked In re Haygarth (1913), where Joyce J. had discussed this principle at length. Joyce J.’s quotation, also used in Timbo, states that the testator’s proven intention can control even clear words and “supply the place of express words, in cases of difficulty or ambiguity.”
In practical terms, in Timbo, this meant the judge felt justified in reading the will as if it included the words “and their respective families” after naming the sons. Those words were not actually in the will, but he inferred that is what the testator meant by calling it “family property.” By doing so, he aligned the legal effect (tenancy in common) with the perceived intention (each son’s family will benefit from the property).
How do courts infer intention from language?
Literal meaning vs. contextual meaning: The court will start by looking at the plain meaning of the words. Here, literally, “to my natural sons A and B my house” suggests a straightforward gift to the sons. But then “to be used as family property” is a contextual modifier. Because literal reading of that phrase is not obvious (wills don’t commonly use that term), the court looks at context: The testator had other children, this was his home, he forbade sale. From those facts and words, the trial judge inferred the intention that “my two sons and their descendants should keep this house in the family lineage.” That inference was drawn by analogizing to other wills in caselaw where similar wording was used.
Use of precedent and extrinsic aids: Courts often rely on prior cases and sometimes extrinsic evidence of standard usage to interpret intention. Timbo referenced Lucas v Goldsmid to interpret “family.” Although each will is unique, such precedents act like a dictionary of intent – e.g., courts have consistently taken “family” to mean “heirs or descendants” in realty context, so likely this testator meant that as well.
Supplying words or correcting errors: There is a long-standing tolerance in will construction for minor tampering with text if it’s necessary to make sense of a clause. Courts can correct obvious clerical errors (for example, if a will said “I leave 1000 dollars to John” but context shows he meant Jane, sometimes courts allow a correction, though traditionally very cautiously). In Timbo, there was no clerical error, but rather a missing clarity. Luke J. effectively “inserted” an interpretative gloss. This was not rewriting the will in a new way, but making explicit what was implicit.
This is tied to the principle that the will speaks from the testator’s intention, not just from the page. Judges often say they are “seeking the testator’s intention” which may allow some flexibility with the wording. However, they must have a basis in the will’s language or structure to do so – they can’t just make a wild guess; the inferred intention must be supported by the text read as a whole. In Timbo, the basis was the phrase “family property” itself and the structure of the gift.
“Armchair rule”: While not explicitly discussed in Timbo, generally courts may put themselves in the testator’s armchair – consider what the testator knew and circumstances around him when he made the will. Here, context: a father with many children leaves the home only to two sons with a stipulation. It would be natural to infer he wanted those two sons, as family heads perhaps, to keep the home for the benefit of the family (maybe those two were eldest sons from two marriages or something – we can speculate reasons). The court doesn’t mention extrinsic evidence, but this context would be in mind.
Relevant authorities:
Besides In re Haygarth, we have the general maxim from cases like Abbott v. Middleton (1858) where Lord Wensleydale said the only sound principle is to “inquire what was the [testator’s] intention as expressed in the words of the will,” etc.
Linguistic canons vs intention: Sometimes literal canons (like expressio unius, etc.) yield if they frustrate intent. In Timbo, one might say there’s a canon that if a will doesn’t say “in equal shares” etc. it’s joint. But that yielded to a higher principle of intent gleaned from context.
Precatory words vs binding intent: The case also demonstrates handling of precatory language (words of wish). “to be used as family property and not sold” could be read as precatory (a wish or guidance). The court basically treated it as indicative of binding intent for construction purposes (i.e., binding enough to shape the estate given). Historically, courts sometimes ignored precatory words as not creating enforceable trusts (as in old cases where “I wish my wife to take care of our children” doesn’t impose a trust on her, etc.). But here, because it affected how the gift is fundamentally characterized, the words were given weight. It shows that if precatory words reveal intent about the nature of the gift, they won’t be brushed aside.
The appellate court also aimed to honor intention but saw it differently, and interestingly did not supply any words. They took the will’s text more at face value (“family” singular). This highlights another limit: courts will not lightly add words unless they feel quite certain of intent. The trial judge was confident in adding “respective” families; the appellate judges thought that was a step too far and not clearly warranted by the actual words.
In conclusion, the testator’s intention is the “pole star” of will interpretation, and Timbo v Jalloh illustrates that courts will employ various techniques to effectuate that intent:
They will interpret ambiguous phrases in the way that best fits the presumed intent (here, reading “family property” to mean something specific).
They will bring in established interpretive rules from case law (like anything indicating division -> tenancy in common).
In case of ambiguity, they might insert clarifying words or remove misleading ones (with caution) to make the will make sense. This is done only when the overall intention can be confidently ascertained from the will; it’s not rewriting the will to say something completely unmentioned, but clarifying something that is latent.
All of this is done to avoid a result that the testator likely did not want. If following the strict literal text leads to an outcome inconsistent with the testator’s known wishes or the spirit of his dispositions, courts are inclined to adjust the interpretation (within permissible bounds) to align with intent.
Thus, in Timbo, intention was the rationale for deviating from the default joint tenancy outcome. It was the reason the judge felt empowered to read in “respective families” because he saw that as the only reasonable intent behind “family property.” The case thereby demonstrates the lengths to which courts will go (even adding words) to carry out a will-maker’s intended purpose.
5. Suppose a will leaves property “to my children as family property.” How should a court approach interpreting such a clause? Outline the steps and principles a court would use to construe this provision, drawing on Timbo v Jalloh and related precedents.
Answer: A clause in a will that leaves property “to my children as family property” is inherently vague and would raise questions very similar to those in Timbo v Jalloh. A court interpreting this clause would proceed methodically through several steps and principles:
Identify the Beneficiaries and Context: First, the court notes that the beneficiaries are “my children.” That likely means all the testator’s children (assuming none are specifically excluded). The gift is collective to them. The context includes the family situation: How many children? Are they from different marriages? Are there indications why the testator used the term “family property” (e.g., is it an ancestral home)? The court might consider these factual matrices as part of the surrounding circumstances (without using extrinsic evidence to vary the will, but to understand the background).
Apply Default Presumptions: By default, “to my children [some property]” – if nothing else is said – might create a joint tenancy or tenancy in common. Historically, as discussed, the common law default is joint tenancy, but many courts, especially in the modern era, will lean toward tenancy in common if the will is silent about shares. However, here the phrase “as family property” is appended, which is not standard language. So the default alone is insufficient; the phrase must carry some meaning. The court will recognize that “family property” is intended to qualify the nature or use of the gift.
Determine Possible Meanings of “Family Property”: Drawing on Timbo v Jalloh, the court knows this term can mean a few things:
It could imply that the property is to remain collectively owned by the family (the children and perhaps further descendants), i.e., not divided or alienated.
It could imply each child’s family (meaning their own children) should inherit their portion (which suggests tenancy in common).
It might be an attempt to impose a trust or condition that the children hold it for the benefit of the “family” (perhaps including grandchildren, etc.).
The court will likely see it as either a precatory condition or a descriptive term affecting the mode of co-ownership.
Use Canons of Construction (Whole Will Approach): The court will read the entire will to see if elsewhere the testator gave clues. For example, does the will mention what happens to the property upon a child’s death? Does it mention “if any child predeceases, then to their issue” (which would strongly indicate tenancy in common shares to pass down)? If the will is short and only has this clause, the court focuses on this clause alone but within the known family context.
Invoke Precedent: Timbo v Jalloh would be directly on point as a persuasive (if not binding, depending on jurisdiction) precedent. The court would recall that in Timbo, “family property” led the trial court to tenancy in common because it indicated an intent for each family line to benefit, and led the appellate court to joint tenancy because of a different view of “family”. The court will consider which interpretation aligns here. If the testator said “to my children as family property,” it’s perhaps more straightforward than Timbo because it’s the testator’s own children as a group, not just two of them. It might indicate a collective holding for the next generation as a whole.
Interpretation Likely Outcome: Most likely, a court would interpret “as family property” to mean “to be held collectively and retained for the benefit of the family (the children and beyond).” But how to implement that legally?
One way: View it as creating a tenancy in common among the children, with an understanding (maybe not legally enforceable) that they shouldn’t sell outside the family and that their shares will go to their kids (the testator’s grandchildren). This would mirror the Timbo trial approach: by giving each a distinct share, each share stays in that child’s family.
Another way: Possibly treat it as a joint tenancy among the children with restrictions on sale, meaning the last surviving child keeps it (and then presumably it would go to the survivors’ heirs, who at that point are the family). However, joint tenancy could result in one child getting everything by survivorship, and the others’ families losing out, which seems contrary to “family property” if the testator wanted an equitable spread.
Given Timbo’s lessons, a court would probably lean towards tenancy in common. It might say: the phrase “as family property” is a word of intention that the property not be treated as separate portions to be sold off commercially, but as an heirloom. Courts can’t enforce a perpetual non-sale condition easily, but they can reflect the intention by ensuring each child’s stake is preserved for that child’s heirs (tenancy in common achieves that because when a child dies, their share goes to their estate, presumably eventually to their kids, the testator’s grandchildren).
Address “Not to be sold” if implied: In the question phrasing we only have “as family property.” Often, as in Timbo, that came with “not sold.” If “not sold” or any restraint is mentioned, the court will interpret it similarly to Timbo: not an absolute condition (which might be void if indefinite), but as indicating intention to keep it in the family.
Possibly Impute Missing Terms: Following Timbo (trial), the court might say, “It is as if the testator said ‘to my children and their respective families,’” if the aim is to emphasize lineage. Or “to my children to hold on trust for themselves and the family” – though that would edge into creating a trust, which is another possible interpretation (family property could hint at a trust or family arrangement). If a trust wasn’t explicitly created, the court likely wouldn’t conjure one unless the will strongly suggests a trust obligation. More likely, they treat it as creating a tenancy in common with an understanding.
Outcome – Likely Tenancy in Common: So, step by step, the court would conclude: The simplest legal estate that aligns with “family property” is a tenancy in common. Each child gets an undivided share (likely equal shares absent contrary mention). The term “family property” suggests they are not to treat their share as purely personal to do anything with – but legally, each tenant in common can technically sell their share. Courts cannot fully stop that unless they see the will as imposing a trust or life estate. If the will is short, they probably won’t infer a complicated trust; they’ll stick to form of co-ownership.
The court might expressly state in its judgment: “Given the phrase ‘as family property,’ the court finds that the testator intended the property to be preserved within the family and for each child’s branch of the family to ultimately benefit from that child’s portion. Therefore, the gift will be construed as a gift to the children as tenants in common in equal shares. This allows each child’s share, upon their death, to pass to their issue (the testator’s grandchildren), thereby keeping the property ‘in the family’ as intended.”
Supporting with Cases: The court could cite Timbo v Jalloh (the trial court’s reasoning) approvingly for the principle that “family” implies inheritance line. It might also cite Re Estate of Solomon (hypothetical) or other cases where wills said “family home to be kept for family” – often those have resulted in either a trust or a tenancy in common. If any local cases exist where “family property” or similar was interpreted (the Sierra Leone Court of Appeal decision in Timbo (1953), for example), the court may discuss it. It might note that the WACA took “family property” differently, but that was in context of only two children and an express not-sell clause; with “to my children as family property,” arguably the intention for equal family benefit is even clearer (so tenancy in common is even more strongly justified).
Final Step – Declaration: The court would ultimately declare the type of co-ownership. If there was any doubt, they could also look at statute: Is there a Wills Act or Property Act in the jurisdiction that provides guidance? Some jurisdictions automatically convert a devise to multiple persons into a tenancy in common unless joint tenancy is explicitly stated (this is the law in some places to avoid precisely this confusion). If such a statute exists, the court’s job is simpler: by law it’s tenancy in common, and “as family property” just reaffirms the intention not to sever or sell readily.
If the testator’s intent was extremely clearly to hold jointly (for instance if he had said “I want the last surviving child to have it outright”), then “family property” might have a different nuance (like one family member at a time holds it for all). But absent that clarity, tenancy in common is safer and more in line with normal inference.
In conclusion, a court interpreting “to my children as family property” will:
Recognize it as an ambiguous but intention-laden phrase.
Use context and canons (especially the rule that anything hinting at divided benefit negates joint tenancy).
Lean towards a tenancy in common (each child’s share goes to their family).
Possibly impose an implicit restraint or understanding (like encouraging them not to sell outside the family, though legally unenforceable except via moral suasion or a trust).
Ensure the result doesn’t violate any rule (e.g., perpetuity or absolute restraint on alienation – likely not, since tenancy in common doesn’t restrain alienation legally).
Thus, they effectuate the likely intent: keeping the property within the bloodline of the testator, shared among all children’s descendants.
Drawing on Timbo, the phrase “family property” basically tells the court: “Don’t do the normal thing blindly; figure out how this can remain in the family over time.” And the court’s toolkit (tenancy in common, or maybe a constructive trust among the children) achieves that. The answer from Timbo is that tenancy in common was the mechanism chosen to honor that phrase.