ACCRA - A.D 2018
AKU MINGLE - (Defendant)

DATE:  9 TH JULY, 2018
SUIT NO:  BMISC/661/2012


i. Introduction:

[1] This action relates to the interpretation of the Last Will and Testament of the late Amos William Arthur who was a resident of Zongo Lane, in the County of Ussher Town, Accra, Ghana. The parties to the action are Margaret Arthur, a daughter of the Testator and Aku Mingle, a granddaughter of Susana Arthur deceased who was the daughter of the Testator. The essential dispute between the parties is whether Susana Arthur’s Children and Children’s Children including the Defendant are beneficiaries of the Will of the Testator.


[2] The Testator Amos William Arthur died on July 18, 1961. Probate of the Will was granted by the High Court on November 27, 1961 to the named Executors of the Will. In this suit the Plaintiff seeks a declaratory order of this Court that her late sister, Susana Arthur’s children and children’s children including the Defendant herein are not beneficiaries of House Number C. 437/4 Kokomlemle, Accra.


ii. The Action:

[3] On May 8th, 2012, the Plaintiff herein caused his lawyer to issue a writ of summons claiming against the Defendant the following judicial reliefs:-

i. A declaration that by the proper interpretation of the last Will and Testament of the late Amos William Arthur dated 15th October 1959 probate of which was granted on 27th November 1961, the late Susuana Arthur’s Children and Children’s Children including the Defendant herein are not beneficiaries of House Number C438/4 Kokomlemle, Accra

ii. A declaration that the Head of Family, Mr. Armaah did not and cannot ignore, amend or change the last Will and Testament of the late Amos William Arthur to make Susuana Arthur and her children beneficiaries of House Number C438/4, Kokomlemle, Accra.

iii. An order for recovery of possession of the two bedroom flat occupied by the late Susuana Arthur during her life time as a licensee.

iv. Perpetual Injunction restraining the Defendants, her siblings, agents, assigns and successors from ever laying claim whatsoever to House Number 438/4 Kokomlemle, Accra.


[4] Appearance was entered and a statement of defence was filed on July 13, 2012 after service of the writ and statement of claim. The Defendant denied substantially, all the allegations and claims of the Plaintiff. It was averred in paragraphs 11, 12, 13 and 14 of the Statement of Defence in particular that:

“11. The Defendant says that the said top floor of House No. C438/4, Kokomlemle according to the will the Amoa Williams Arthur was to be used to pay for annual rates, taxes, repairs and incidental expenses and was not willed to the plaintiff.

12. That since the top floor of the said house is a family property, it is the Arthur’s family which controls the said property.

13. The defendant says further that her grandmother Susanna Arthur, herself and siblings are all members of the late Arthur’s family.

14. The defendant says further that it was with the consent, knowledge and authority of the Arthur’s family she and her siblings are occupying the top floor of House No. C438/4, Kokomlemle, Accra.”


[5] The Plaintiff filed a reply to the Defence on July 25, 2012 together with an Application for Directions and averred by way of a reply that “the property in dispute is not and cannot be the family property of the Defendant”.


iii. Issues

[6] After the close of pleadings, the following issues were set down for hearing and determination of the court:

a. Whether the Plaintiff has capacity to institute the action

b. Whether the property in dispute is a family property

c. Whether the Defendant is a successor or beneficiary of the estate of the late Alice Arthur

d. Any other issue arising on the pleadings.


iv. The Plaintiff's Case

[7] The case of the Plaintiff from the Witness Statement filed and adopted as the evidence-in- chief is that she is a beneficiary of the Will of her late father, Amos William Arthur who died on July 18, 1961. The Plaintiff testified that she therefore instituted the action as a beneficiary of the Will of her late father. Madam Arthur told the Court that the Defendant is a granddaughter of the late Susuana Arthur who was also a daughter of the Testator. According to the Plaintiff her late father devised the ground floor of the house which is the subject matter of the dispute to her and her brother - Robert Arthur which devise is contained in paragraphs 1 and 2 of the Will. She tendered as Exhibit “A” a copy of the Will together with the Probate. She further testified that her late father did not give anything in his Will to her late sister, Susuana Arthur who is the Defendant’s grandmother.


[8] According to Madam Arthur, by her father’s Will the collection of rent in respect of the top floor of the house was vested in the Testator’s sister who was her aunt the late Alice Arthur and the collection of rent for the ground floor who vested in her and the brother who now lives in the United States of America. The Plaintiff further testified that since the death of Alice Arthur, the payment of taxes, rates and repairs to the whole building fell on her and the brother.


[9] Madam Arthur further testified that after the death of her aunt Alice Arthur, the late Susuana Arthur, who was not mentioned in the Will had accommodation difficulties and sought the assistance of the Head of Family, one Mr. Armaah who consulted with the Plaintiff and other family members to give her a place to live. According to the Pliantiff her late sister Susuana Arthur was permitted to occupy two bedroom and a hall on the top floor of House Number C4438/4, Kokomlemle, Accra but the place was never gifted to her.


[10] Madam Arthur further testified that Susuana Arthur died about five (5) years ago but after her death, the Defendant who is Susuana’s granddaughter took over the said two bedroom on the top floor and claims it belongs to her grandmother. She testified that the Defendant has since locked the rooms and permits whoever she wants to use it occasionally to use it.


[11] The Plaintiff further testified that the building is now old, dilapidated, the roof leaks and the top floor concrete is cracked and therefore it affects her who occupy the ground floor. It is the case of the Plaintiff that the entire building requires urgent renovation but the Defendant has refused to vacate the top floor to enable the work to be done on the grounds that the top floor is a bona fide property of her late grandmother because it was given to her by the Head of Family.


[12] The Plaintiff testified that she reported the Defendant to the Rent Office because she refused to vacate the house. According to Madam Arthur the Rent Office heard the matter and also visited the property and wrote a report on the state of the whole building and also ruling in her favour and ordered the Defendant to vacate the house but the Defendant refused. The proceedings at the Rent Office was tendered as Exhibit “B” at trial. The Plaintiff tendered in evidence at trial photographs which according to her represent the current state of the building as Exhibits “C1” to “C4”. It is therefore her case that the building’s present state is dangerous and not conducive for occupation. The Plaintiff therefore implored the Court to grant her reliefs and order that the Defendant vacates the house to enable renovation works to be done and an injunction to stop the Defendant from laying claim to the House Number C438/4 Kokomlemle or any part of it. . The Plaintiff did not call any other witness. In a nutshell, the Plaintiff gave evidence for herself to close his case


v. The Defendant's Case

[13] The Defendant gave evidence by herself and called Rev. Alexander Kofi Parry as a witness. The Defendant’s case is that the testator in his Will gave the Plaintiff and her brother, Robert the right to enjoy the collection of rents of the ground floor of the house but gave the top floor of the house to Alice Arthur (sister of the testator) to enjoy the collection of rents of same but use the rents for the month of November and December in each year for the payment of Annual rates and taxes, repairs and incidental expenses. According to the Defendant Alice Arthur was the sole and absolute owner of the top floor of the house subject to the condition of using November and December rents to pay rates etc.


[14] According to the Defendant her grandmother Susuana Arthur was the first child of the Testator, Amos William Arthur and therefore a sibling of the Plaintiff. The Defendant conceded that her grandmother went to live in the house at Kokomlemle after the death of Alice Arthur because she had accommodation problems and was allowed in by the Head of Family, Mr. Armaah upon consultation with other members of the family. According to the Defendant the decision was made because it was reasoned that with the death Madam Alice Arthur, the top floor of the property in dispute became family property and since her grandmother was the first child of the Testator, she had the right to occupy one flat at the top floor.


[15] The Defendant further testified that in regards to the maintenance of the property, the family decided that since there are two flats at the top, the other flat should be let out and the proceeds used to maintain the property and pay the annual ground rent. Madam Mingle testified that she lived with her grandmother Susuana Arthur until her death and “since the top floor flats in the property now belong to the family, it is only they (the family) who can decide who occupies them” and therefore the “Plaintiff has no business to claim the top floor” because the top floor was not willed to the Plaintiff and her brother.


[16] According to the Defendant after the death of her grandmother, the Plaintiff took her to the Rent Office to eject her and she failed hence the present action. She also testified that he Plaintiff was advised by the family to stop the action but she has refused. It is also the case of the Defendant that the Plaintiff has packed some of her personal effects in one of the flats and locked the door thus making it impossible to let that flat out and use the proceeds to maintain the property.


[17] As indicated above, the Defendant called Alexander Kofi Parry as a witness. He testified that he is now the head of family of the Amos Arthur family. He testified that he knows the parties. According to him after the death of Alice Arthur “who was enjoying the rent of the top floor of the Kokomlemle House, the family headed by Mr. Armah now deceased met and they all agreed that one part of the top floor, a hall and two bedrooms should be given to the first daughter Susana Arthur AND the other part rented out to fulfil the Testator’s wishes”. According to him the family took the decision because the Plaintiff and her brother are not the beneficiaries of the devise made in respect of the top floor of the house. He also testified that after the death of Alice Arthur, the top floor of the property became a family property and can only be used according to the decision of the family and therefore the Plaintiff and her brother alone cannot decide on how the top floor is used. The Defendant closed her case after the witness’ testimony. In a nutshell, this is the evidence before the court.


vi. The Court’s Analysis, Opinion & Conclusion:

[18] I shall state the law as it relates to the burden of the parties in this suit and later relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. Before the necessary findings I shall deal with the legal principles in regards to the construction of a will.


[19] The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323).


[20] There have over the years been judicial opinions on the nature and standard of proof in civil cases. One of such decisions is ABABIO V. AKWAS III [1994-1995] GBR 774 where Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 2GLR 221. Further, the decision of the Supreme Court on such burden on a party who asserts is in the case of ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held inter alia as follows:


It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”


[21] In my examination of the evidence adduced by the Plaintiff and Defendants in the instant suit therefore, both the Plaintiff and Defendant have an obligation to adduce sufficient evidence in support of their respective claims and same would be measured, weighed in the same degree and extent which any litigant in a civil trial is obligated to adduce in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. For, the general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”


[22] I shall start my evaluation of the evidence by quoting with humility the judgment of Dotse JSC in the case of OTOO (No.1) & OTHERS v. OTOO (No. 1) & OTHERS (2013-2014) 2 SCGLR 777 since this is also a case which touches and concerns the construction of a WILL. The apex Court quoted and relied on the celebrated English case of THELLUSON v WOODFORD, (1798) 4. VES. 227, 329 E.R. 117, 167 and the writing of the Learned Author of Modern Law of Succession in Ghana, A.K.P. Kludze, at page 83, in which a rule on the construction of Wills was laid down by the court in the following terms:-

“I know only one general rule of construction, equally for courts of Equity and Courts of Law, applicable to all Wills, which the courts are bound to apply however they may condemn the object, the intention is to be collected from the whole will taken together. Every word is to have its effect. Every word is to be taken according to the natural and common import; and if words of art are used, they are to be construed according to the technical sense, unless upon the whole will it is plain, the testator did not so intend. The Courts are bound to carry the will into effect, provided it is consistent with the rules of law.”


[23] I have also found useful from another Common Law jurisdiction the Ontario Court of Appeal decision of RONDEL v. ROBINSON ESTATE[1], by which the Court of Appeal upheld an application judge’s decision and the Supreme Court of Canada declined to hear an appeal from that decision. At para. 23 of its decision, the Court of Appeal described the court’s role when interpreting a will in the following terms:

[T]he task of the application judge, sitting as a court of construction, was to give effect to the testator’s testamentary intentions. The fundamental purpose of the law of wills is to give effect to the testamentary intentions of the testator for the distribution of her estate. The general rule of the common law is that in construing a will, the court must determine the testator’s intention from the words used in the will, and not from direct extrinsic evidence of intent. [Emphasis added.]


[24] Taking a cue from the Supreme Court and in construing Clauses 1 and 2 of the Will which is the anchor on which both the Plaintiff and the Defendant have built their case I shall set out here clauses 1 to 4 and 20 of the Will of the testator because having read the entire Will it shall afford me the opportunity to interpret the contentious clauses. I note that I have chosen not to set out here in extensor the entire will because the issue for my consideration is within a very narrow compass and does not involve interpreting the entire Will. The stated clauses read as follows:

“This is the last Will and Testament of me, AMOS WILLIAM ARTHUR of Zongo Lane, in the County of Ussher Town, Accra, Ghana. I hereby revoke all Wills and Testamentary instruments heretofore by me made. I appoint Mr. Samuel Yanyi Arkorful of Accra, Ghana, andnMadam Alice Arthur of Accra, Ghana and Madam Agnes Sagoe, also of Accra, Ghana to be the Executors of this my Will. I direct my Executors to pay my just debts and Funeral and Testamentary Expenses.

1. I give and bequeath to my sister Alice Arthur alias Aunt Adjuah, to enjoy the collection of rents of the top floor of my house No. C.438/4, situate at Kokomlemle, Accra, but rents for the months of November and December in each year to be reserved for the payment of Annual Rates and Taxes, Repairs and incidental expenses.

2. To my daughter Margaret Arthur alias Mami Nana and my son Robert Arthur alias Papa Nee Latieku, all of them to enjoy the collection of rents of the ground floor of the above House already described. No interference at any time whatsoever from their mother of this privilege. The Executors to note this very carefully. My sister Alice Arthur to assist in the distribution of the rents. Rents for the months of November and December in each year be reserved for the payment of Annual Rates and Taxes, Repairs and incidental expenses.

3. I will and bequeath to my children Awo Nkpa, Koley, Ago and Abbam the House at Abossey Okai termed “NKOTONSE” to my four (four) children. Two Pounds Ten Shillings ((£.10) should be paid to Abbam every month for his schooling. Also Two Pounds Ten Shillings (£2.10) should be paid to Ago every month for his schooling. If these two boys finish their secondary education, their interest in the House still stands.

4. I will and bequeath the House near Nkrumah termed “NKRUMAH TERRACE” to the following persons:- Essie Netsiba; Adjuah Amena; Amah Ahema; Abena Ansaba; and Efuba Adiyena all of Senya Bereku to enjoy for the collection of rents in that particular house amounting to £8 (Eight Pounds) per month. Out of this amount £2 (Two Pounds) a month which is £24 (Twenty-Four) pounds per annum should be paid to Otoo Parry for his Secondary Education. If he completes his education after six years, Otoo Parry has nothing further in the house because he has completed his education and the whole £8 (Eight) pounds goes to the persons already mentioned above”

To clarify the position only the building on this land belongs to my sisters and nieces of Senya Bereku mentioned above, but the land attached to the building belongs to my children Mami Nana Arthur and Papa Nii Arthur”.

20. The Kokomlemle Property to be distributed as follows:

(1) The top floor belonging to Aunt Adjuah is £20 (Twenty Pounds)

(2) The Downstairs belonging to Papa Nii Arthur and Mami Nana Arthur. The amount is seventeen pounds and Two pounds out of this amount should be paid to sister Agnes Sagoe for the children’s care, leaving a balance of fifteen pounds (£15)”.


[25] In interpreting Wills, it is generally accepted by text writers that the overriding principle is that as far as possible, effect must be given to the intention of the testator and the intention is to be ascertained from the words used. The learned author A.K.P Kludze in his book Modern Law of Succession in Ghana states at page 81, Chapter 5 as follows:

“The cardinal rule in the construction of a will is that the intention of the testator, as declared by him and apparent in the words of his will, must be given effect, so far as, and as nearly as may be, consistent with law”.

See also the Samuel Azu Crabbe in “Laws of Will in Ghana (2nd Printing, Chapter 12 (page 226-231).


[26] In the case of IN Re: ATTA (Decd); KWAKO v. TAWIAH [2001-2002] SCGLR 461, Adzoe JSC (as he then was) speaking for the unanimous Court stated at page 468 as follows:

“…when the courts set out to construe a will, what they do is to look for the intention of a testator as expressed by him, in the actual words used by him, having regards to all the other provisions of the will. The intention which the will itself declares either expressly or by necessary implication is what the courts will act upon…The rule which enjoins the courts to rely on the language of the testator is normally called the golden rule. There are other rules… These several rules have a common aim, namely, to direct the courts towards an objective standard of construction and to exclude evidence which seeks to provide what is supposed to be the actual intention of the testator”.


[27] In the instant case, both parties concede that Susana Arthur, who was a daughter of the Testator was not named at all in the Will and no bequest was made to her. As the facts in the present case disclose the Testator bequeathed the top floor to his sister Alice Arthur and the down floor to the Plaintiff and her brother. The evidence heard at trial confirm that Alice Arthur passed on many years ago and left behind children namely; Anyeley (deceased), Naana, George and Anyetei.


[28] Mr. Bakattah Counsel for the Defendant contends that because the children of the late Alice Arthur are not ready to assert their rights by evicting the Defendant and because the top floor was not willed to the Plaintiff and her brother that part of the property has “assumed the nature and character of family property”. The Defendant in her evidence though concedes that her grandmother was not a beneficiary of the Will of the Testator testified that because her grandmother was allowed to live there during her life time, upon her death it devolved to her and her siblings. The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant on March 20, 2018.

Q: Auntie Alice had children in her life time, not so?

A: My Lord that is so.

Q: So, you see after Auntie Alice died, the top floor of the building should go to her children and not your grandmother, Suzanna, I am suggesting to you.

A: Yes my Lord but I have an explanation. My Lord what my grandmother told me was that, after the death of Auntie Alice the then head of family, Mr. Amaah, was met by my grandmother who proposed to him that she wanted to go and occupy the place, he called the children of Auntie Alice and informed them, he invited the children including his siblings including the Plaintiff. Auntie Alice’s eldest child by name Auntie Anyeley who is now deceased and when the head of family told them that their sister had indicated to him that she wanted to come and occupy the place, the children of the late Alice indicated that by the grace of God, they have somewhere to live so she can go and occupy the place. My Lord Plaintiff and her brother, Robert Arthur including some of the elders in the house some of whom have passed on, they all agreed that my grandmother Suzanna occupies the place that is how come she came to live there.

Q: So, you see from your own evidence, your grandmother Suzanna was allowed to live in the top floor, just to live in the top floor.

A: Yes my Lord, her siblings agreed that my grandmother occupies the place because they already have somewhere to live.

Q: The decision was not to make her owner of the top floor.

A: My Lord I do not know the decision that was taken before the place was given to her.

Q: So, from your answer, you do not know the basis of your claim; you do not have a claim from the answer you have given. I am suggesting to you.

A: My Lord my case has basis.

Q: There are still three (3) children of Auntie Alice alive, they are Naana, George and


A: My Lord I have heard about their names but I do not know them, except the eldest who has passed on, Auntie Anyeley.

Q: You know that Amos Arthur stated in his Will that the November and December rent was for the maintenance of the house.

A: Yes my Lord but I have an explanation. My Lord when my grandmother came to live in the house she made us aware that my younger grandmother, Margaret Arthur – the Plaintiff and her brother, Robert Arthur they own the ground floor. The ground floor has two apartments, the top floor also has two apartments with a separate boys quarters. So when my grandmother came to occupy one apartment, Plaintiff rented out the remaining apartment indicating that the proceeds will be used to maintain the house as captured in the Will. My Lord that is how Plaintiff has been doing.

Q: You know that the house in dispute is not in a good state and it needs repairs?

A: My Lord some portions, the building is there but some portions need repairs….

Q: You do not live in the house in dispute.

A: My Lord I was living in the disputed house before I got married and after marriage I moved to my husband’s house but my siblings are living in the disputed house, I have my belongings in the disputed house, my grandmother, my late father as well as my siblings all have their belonging in the disputed house. My Lord every two weeks I go to the disputed house to visit them and return to my husband’s house because it is very close.

Q: So, are you claiming ownership of the top floor?

A: My Lord that is where our grandmother left us.


[29] Applying the law as stated above and as I under understand it there is no legal basis for the submission of Mr. Bakattah that the top floor of the property has become a family property because the children of Alice Arthur have failed to assert their rights under the Will. I disagree with learned Counsel for the following reasons. First, the above position conflicts with the clear words of the Testator. Second, the decision made by the Head of Family had no legal basis but clearly and only based on humanitarian grounds and therefore same did not crystallize into law as erroneously held by the Defendant and Counsel.


[30] Amos William Arthur’s intention at the time the will was made is manifest from the clear and unambiguous words of the will. There is no evidence that he intended that the whole or part of the Kokomlemle house become a family property. Should that therefore be considered in my respectful opinion this Court would be re-writing the Will and that would not be consistent with the language of the Will. The evidence is that Susana Arthur was his first child but for reasons best known to Testator he did not bequeath anything to her even though many family members including nieces and nephews benefited. To that extent, neither the Head of Family and/or any family member had any legal basis to vary the Testator’s clear intentions. The operative word in in Clause 20 of the Will is “belonging to”. The Testator intended to give the top floor to Aunt Alice and not the family. Upon her death her interest devolved to her children as per Section 8(2) of the Wills Act, 1971 Act 360. To my mind therefore, the fact that the children have failed and/or neglected to assert their right does make the top floor a family property as asserted by the Defendant and her witness who says he is the present Head of Family.


[31] With the greatest respect to the Defendant, as a grandchild of a person who was not a beneficiary to the Will she has no right to assert at law. Her claim of right anchored on the “humanitarian order” of the late Head of Family, Mr. Armaah has no basis in law because the head of family had no right to change the will of the Testator. *He was not a named executor and therefore had no business distributing the estate inspite of the inaction of the named Executors to distribute and vest the property in the beneficiaries*. The Defendant’s grandmother had no interest to pass unto her and therefore she cannot arrogate to herself what she perceives to belong to her grandmother to have passed unto her. There is no legal basis for her contention.


[32] Among other things, I also conclude that the Plaintiff has capacity to mount this action and can recover possession of the top floor where the Defendant says she has her property and her siblings live there. (Also see Section 69 of the Administration of Estate Act). As I understand it from the evidence the Defendant presently does not live in the house but as she testified, she claims the room her grandmother lived before her demise because according to her same was left for her. As already found there is no basis for that claim and therefore same is rejected by the Court. I have concluded that the Plaintiff can recover possession because I have taken into consideration the fact that the Plaintiff as a beneficiary of the down floor of the property has an obligation that the top floor does not cave in to affect her interest. I accept as a fact the evidence per Exhibits “C1 to C4” that the property requires urgent repairs and renovation.


vii. Conclusion & Disposition

[33] Overall, I am satisfied that the Plaintiff has succeeded in proving her case with regards to the relief one endorsed on the writ of summons. Therefore, judgment will issue in the Plaintiff’s favour, as follows:

1. The Court hereby declares that by the true and proper interpretation of the Last Will and

Testament of the late Amos William Arthur dated 15th October 1959 the late Susana Arthur and her children and all those who trace their interest to her including the Defendant are not beneficiaries of House Number C.437/4 Kokomlemle, Accra.

2. The Court hereby declare that whatever decision made by the Head of Family, Mr. Armaah which allowed the late Susana Arthur to live at House Number C.437/4 Kokomlemle had no legal basis and same was void and contrary to the Last Will and Testament of the late Amos William Arthur.

3. The Plaintiffs reliefs iii and iv endorsed on the writ of summons are also granted.

4. For greater certainty however, the Plaintiff is entitled to recover the top floor for purposes of renovating same only and not as her personal property. After the renovation she must rent same out and use part of the proceeds to fulfill the intentions of the Testator; that is paying Annual Rates, Taxes and repairing the house. The remainder of the rent must be placed in an interest yielding account for the benefit of Alice Arthur’s children and grandchildren. I shall however make no order as to Costs.