JUDGMENT OF SARKODEE J.
Ref.: Administration of Estates Act, S.77
The plaintiff is the customary successor and the defendant, one of two widows of the late John Arthur who died intestate on 25 November 1971, possessed of a block of six flats, House No. 120A, West Block, Takoradi, which was his self-acquired property. After the death of her husband the defendant continued to reside and still resides in one of the flats in which she, her husband and children lived immediately before his death. Also she collected rents from tenants who occupied other flats in the building. On 13 March 1973 the plaintiff alone was granted letters of administration to the estate of the deceased. Armed with this and aided by other members of the deceased’s family, he demanded all keys to the flats including the one occupied by the defendant. He also asked her to account for the rents she had collected. The defendant surrendered the keys to all the flats except the one she occupied but refused to render accounts.
The plaintiff was not satisfied and in effect was determined to throw the defendant and her children out of the flat in which she and her husband had lived for many years.
In April 1973 the plaintiff instituted this action claiming:
“(a) an order for the return of all keys to House No. 120A, West Block, Takoradi, to the plaintiff which said keys are with the defendant and which the defendant has refused to hand over despite repeated demands; and
(b) an order for accounts in respect of all moneys belonging to the estate which have come to the defendant since the death of late John Arthur and payment of same to the plaintiff who is the successor and administrator of the estate of the late John Arthur.”
Whilst this suit was pending, the defendant, in view of the harassment she and her children were suffering from the hands of the plaintiff and her husband’s family, and in particular fearing that the children who were then minors would not be maintained by her husband’s successor, applied for and was granted letters of administration jointly with the plaintiff. Accordingly, she continued to collect rents out of which she maintained herself and her children. That was the situation until the court appointed a receiver and manager to the estate of John Arthur in July 1974.
The defendant says that the keys she holds are those to her flat. She explained that it was when the plaintiff refused to pay the school fees of her children and the out-goings such as electricity and water bills and rates in respect of the house that she in her capacity as one of the administrators acted and carried out those important duties. She says further that since November 1976 her children by the deceased have not been provided with maintenance. She, therefore, in her counterclaim asked the plaintiff as an administrator of her husband’s estate to render accounts and for an order that the plaintiff out of the estate provides reasonable maintenance for the children.
When the plaintiff applied to the court for the grant of letters of administration, the defendant entered a caveat and subsequently made serious allegations set out in the ruling of Charles Crabbe J. (as he then was) delivered on 10 April 1974. As the parties could not reach agreement the court ordered the applicant to take out summons within two weeks. When that was done pleadings were ordered and issues agreed upon and the case was set down for trial. After various adjournments, the parties announced a settlement the terms of which were:
“(1) That letters of administration be granted to the plaintiff herein called Isaac Augustus Hayford.
(2) That the defendant shall be granted ¢50 a month from the estate for her maintenance.
(3) That the defendant and her three children by the deceased shall be granted a flat consisting of one half of a floor in House No. 120A, West Block, Takoradi, for her apartment.
(4) That the plaintiff shall be responsible for the payment of school fees and maintenance of the deceased’s three children with the defendant.
(5) That rates and taxes and out-goings on House No. 120A, West Block, Takoradi, shall be borne by the estate.”
Upon these terms the court made the order for the issue of letters of administration which was done on 13 March 1973. Despite this settlement, the plaintiff, one month later, sealed a writ to commence the present action demanding keys including those for the defendant’s flat. On 9 July 1973 when the matter came up for hearing counsel for the plaintiff suggested an amicable settlement. The court then ordered certain investigations to be conducted which revealed that the defendant would not be occupying a complete flat with her children if she surrendered keys to the bedroom, the sitting hall and the kitchen. It was after this report that the parties
appeared before Charles Crabbe J. who after referring to section 77 of the Administration of Estates Act, 1961 (Act 63), the defendant was appointed administratrix in addition to the plaintiff.
Mr. Sekyi-Hughes, learned counsel for the defendant submitted that in as much as the parties are co-administrators the action against the defendant is not maintenable. As a general rule if there are several executors and administrators, they have a joint and entire interest in the estate of the testator or intestate which cannot be divided. Accordingly, they cannot maintain an action at law to protect the deceased’s property against one another the reason being that a person cannot sue himself either alone or jointly with, others: see Ellis v. Kerr  1 Ch. 529. Mr. Hayfron-Benjamin on his part for the plaintiff argued that at the time the writ was issued the defendant was not administratrix and therefore the defendant when she collected rents from 1971 to May 1973 was in law an executor de son tort and could therefore be sued for any amount in her hand.
It is not disputed that the property of an intestate does not, vest in the intestate’s administrator until letters of administration have been granted to him. An executor de son tort is liable to be sued by the rightful representative. Also the defendant as a widow of the intestate, has at customary law a beneficial life interest in her husband’s estate. In this regard, she has a right to protect the estate. There are cases where letters of administration in similar circumstances have been held to relate back to the death of the intestate so as to give validity to acts done before the letters of administration were granted, provided these acts were done in the interest and for the benefit of the deceased’s estate: see Ingall v. Moran  K.B. 160, C.A. In such cases the subsequent grant perfected the defendant’s title and related back to the death of the deceased: see Chetty v. Chetty  1 A.C. 603, P.C. It was however held in Ingall v. Moran (supra) that the doctrine of relation back could be applied to representation which was incompetent when the writ was issued. The defendant would not have obtained the grant of letters of administration but for her interest in her husband’s children. The court granted her power to administer the estate jointly with the plaintiff in accordance with section 77 of Act 63 to enable her protect the interests of her children who were then minors. Her duty was to see that the interest of those young ones was not trampled upon by their father’s successor. I hold therefore that the defendant is not liable to account to the plaintiff. Even if I were to hold that the action was maintainable whatever the defendant did was in the interest of her late husband’s
estate. The subsequent grant perfected the defendant’s title and related back to the death of the deceased.
The plaintiff claims from the defendant all the keys to House No. 120A, West Block, Takoradi. From his own evidence it seems the plaintiff was able to collect all the keys except those to the garage attached to the defendant’s flat and the key to what has been described as the stranger’s room. The plaintiff accepted as a condition to the defendant withdrawing the caveat that she and her children should continue to live in the flat. The garage and the stranger’s room form part of the flat and were used as part of the whole flat and enjoyed with other amenities in the flat during the lifetime of the deceased. That apart, Charles Crabbe J. (as he then was) caused an inspection of the flat to be made and it became clear that it would be difficult for the defendant and her children to occupy only half of the flat. The defendant, her husband and her children lived in that flat for many years. The possessory life interest of the widow and her children is a right which is prior to any enjoyed by the customary successor or the widower’s family: see Abebreseh v. Kaah  2 G.L.R. 46 at p. 61. It would be unreasonable to compel the defendant to surrender the keys. The right to occupy the flat as a whole should be respected by the successor and the deceased’s family. She and her children should not surrender the keys to the flat. Rather they should occupy the whole flat as she and her husband enjoyed during his lifetime.
The plaintiff by his appointment as customary successor became a representative of his family and a trustee or caretaker of the marriage. Under customary law, the death of either spouse or both does not determine the union of two families established by the marriage. Thus the husband’s duty to provide accommodation and maintenance for his wife and children devolves upon his family or successor, a responsibility which can only determine upon the death of the wife or upon the determination of the marriage in a lawful manner: see Ollennu, The Law of Testate and Intestate Succession in Ghana chapter, 29. Where the successor fails or refuses to maintain the children of the deceased and their mother assumes that responsibility, she is entitled to sue the successor to recover any amount so spent. It was held in Manu v. Kuma  1 G.L.R. 464 at p. 469, S.C. that:
“A mother is, in the absence of the father or the father’s successor, the natural guardian of her infant child, and is entitled to sue on their behalf for their maintenance or for any other relief. Therefore the defendant, successor to the father, having neglected the children proper the person to sue is the mother
the plaintiff . . .; the plaintiff is therefore an agent of necessity of the defendant and is entitled at common law to be reimbursed as to the amount she was obliged to expend on her children.”
The plaintiff as successor to the estate of John Arthur failed to educate and provide reasonable maintenance for his children. It therefore became the burden of their mother to discharge those responsibilities. As an agent of necessity she is entitled at common law to be reimbursed out of her husband’s estate the amount she spent on the children. Apart from the common law, a mother has a right to claim from her husband or his successor expenses she may incur for maintaining and providing medical treatment for herself and her children. The defendant has been responsible for the maintenance of herself and her children since the death of her husband in 1971 and has been paying the children’s school fees, the plaintiff having neglected to perform those duties. The plaintiff does not deny this but says that he failed to look after the children because the children of the defendant were hostile to him. But the undisputed fact is that the defendant and her children could not trust the plaintiff. It appears the very first time after the death of John Arthur when the plaintiff entered house No. 120A, West Block, Takoradi, that he went there solely to demand from the defendant keys for the flat and indeed threatened to eject the widow and her children out of the flat. It was the plaintiff’s persistent demand for the keys and the widow and her children’s determination to protect their rights as owners of the life interest in the deceased’s self-acquired property that started the quarrels between him and the defendant and her children. The plaintiff cannot be heard to say he refused to maintain the children because of their attitude. They had to act in defence of their rights.
The defendant’s eldest child has since been married but the other two, though over 21 years in each case, are undergoing full time education and ought therefore to be maintained out of their father’s estate. The defendant estimates that the children spent about fifteen cedis a day. That amount was given before the present day rate of inflation. I would therefore raise that amount to twenty cedis a day. I order that this sum should be paid out of the estate to the defendant and her children for as long as she remains a widow and the children up to the age of 25 years each or cease full time education whichever is earlier. The successor shall pay the school fees of the children.
The defendant started to collect rents for the estate as soon as her husband died until the court appointed a receiver and manager. She admitted that she spent some moneys out of the rents for the children.
I do not therefore think she is entitled to be reimbursed for expenses she incurred.
The defendant is now an old woman and is deteriorating in health. There is no question that she could re-marry and it appears she has no intention of taking a formal divorce from her husband’s family. It would, therefore, be unfair and against good conscience in such circumstances for the successor or the husband’s family to divorce her formally and give her a send-off. The defendant lived with the deceased husband for many years when he was a regional commissioner and no doubt ably played the part of a regional commissioner’s wife. It would be inequitable to reduce the size of the flat as she enjoyed together with her family and make her share it with another family. That in my view would amount to a lowering of her standard of living. I do not therefore think that she would be asking for too much, and I accordingly direct that the life interest of the widow and her children should cover the entire flat as occupied by her and her husband during his lifetime including the garage, sitting hall, stranger’s room and the kitchen together with its amenities. Costs ¢1,500 to the defendant.