NYLANDER & ORS. V. THOMAS

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

NYLANDER & ORS. V. THOMAS

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1.

LUCRETIA PHEBEAN NYLANDER

2.

CHRISTOPHERSON EMMANUEL THOMAS

NYLANDER

3.

LUCKY VICTORIA NYLANDER

(Executor and Executrices of the

Estate of A.G.R. Nylander (Deceased))

V

STEPHEN PETER THOMAS

(By his Attorney, Eardley Akinwande

Peter-Thomas as Trustee of the

Estate of P.J.C. Thomas (Deceased) )

DEFENDANTS/APPELLANTS

PLAINTIFF/RESPONDENT

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15

SUIT NO. SC 157/1966

SUPREME COURT OF NIGERIA

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ADEMOLA,

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C.J.N.

BRETT,

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J.S.C.

MADARIKAN,

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J.S.C.

1st March, 1968.

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Trusts and Trustees - Person appointed as Executor and also Trustee - Fact of

renouncing probate and not acting as trustee - Effect of fact of refusal if

duties of executor by will inseparable from duties of trust - Trustee Act

1893, s.10(1) - Claim not in detinue but for equitable enforcement of trusts

- The maxim actio personalis moritur

CUM

persona not applicable to claim in

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equity of this kind.

ISSUES:

1.

Where a Testator appoints a person an Executor and Trustee of his Will, what

can be inferred from that person's omitting to act as Trustee for a long period

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even though not formally renouncing probate.

2.

What is the effect of the fact of renouncing probate and not acting as Trustee

if the duties of Executor are by the terms of the Will inseparable from the duties

of the trust.

3.

Whether an Executor's claim against a defendant for the return of the Testator's

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books and documents in his possession can be rightly described as a common

law claim in detinue.

FACTS:

P.J.C. Thomas by his Will appointed his nephew, A.G.R. Nylander along with

two other persons as Executor and General Trustee of his Will.

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When Thomas died, probate of his Will was granted to Nylander who was de-

scribed therein as "one of the three Executors named in the said Will: There was

no evidence of any formal renunciation of probate by the other named Executors

but equally no evidence that either of them at any time acted either as Executor or

General Trustee. Nylander proceeded to get in the Estate and had certain com-

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pany shares held by the Testator transferred to his own name.

At a later date he executed a Deed of Appointment in his capacity as surviving

Trustee by which he appointed the present plaintiff/respondent a General Trustee

of the Estate of P.J.C. Thomas. The Deed recited that Nylander had acted since