CORAM
COKER JUSTICE, SUPREME COURT
UDOMA JUSTICE, SUPREME COURT
SOWEMIMO JUSTICE, SUPREME COURT
PARTIES
FATAYO OJULE & 5 ORS. APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The defendant/respondent are grand children of the testator, they were given a portion of one of the deceased property intervivos. Upon the death of the deceased, the plaintiffs institute this action claiming that they are the beneficiaries of the un-devised part of the building given to the defendants, being part of the part o estate of the deceased and covered by the will.
HELD
The court held that the appellants are neither in locus parentis to the testator nor the inter vivos gift of part of the property to them extinguish the residuary clause as contained in the will made by the testator, in this light their claims cannot stand.
ISSUES
The complain generally that the facts and circumstances given in evidence in the case warranted an order to the effect that the residuary clause had adeemed, and that the defendant should have been adjudged disentitled to any further share under the Will in whatever is left of the property situate at and known as No.34, Denton Street, Ebute-Metta.
RATIONES DECIDENDI
PROOF OF AN INTERVIVOS GIFT
The onus of proving that an intervivos gift by the testator to a beneficiary has extinguish the residuary clause contained in a will, lies on the party asserting same to show that the residuary clause is adeemed by virtue of the gift to him. COKER JSC
EFFECT OF AN INTER-VIVOS GIFT
an inter- vivos gift of part of an entire property to a beneficiary does not extinguish the residuary clause of the testator. COKER JSC
CASES CITED
Re Tussauds Estate, Tussaud v. Tussaud (1878) 9 Ch. D. 363).
Ex parte Pye 34 ER 271 at p. 274
Re Shields Courbould-Ellis v. Dales (1912) 1 Ch.D. 591).
STATUTES REFERRED TO
Halsburys Laws of England 3rd edition