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Waidabu v Cappelle [1973] NRSC 1; [1969-1982] NLR (B) 71 (27 February 1973)

[1969-1982] NLR (B) 71

IN THE SUPREME COURT OF NAURU

Land Appeal No. 4 of 1973

EIDERANEIDA WAIDABU

v.

SUSANNAH CAPELLE AND OTHERS

27th February, 1973.

Estate of deceased intestate Nauruan - deceased without issue - Administration Order no. 3 of 1938 - estate passing to nearest relatives - one of nearest relatives predeceasing deceased, leaving will but no issue - beneficiaries under will not entitled to share which testator would have received if she had survived deceased.

Ea. died intestate without issue in 1962. She was survived by several brothers and sisters. One sister, Ei., had predeceased her. Ei. died without issue but left a will disposing of the whole of her estate.

Held: As Ei. had predeceased Ea., none of Ea.'s estate formed part of Ei.'s estate.

B. Dowiyogo for the appellant
Respondents in person

Thompson C.J.:

This appeal, like Land Appeals Nos. 2 and 3 of 1973, relates to the distribution of Eangitur's estate. It concerns the same portions of land as those two appeals. The Nauru Lands Committee's decision in the matter is published in Gazette No. 1 of 1973. The appellant is one of the beneficiaries. She is seeking to have excluded from the beneficiaries thirteen of the persons decided by the Nauru Lands Committee to be beneficiaries. They are:

Susannah Capelle
Eidengarangar T.
Walter Detsijogo
Maura
Sohrab Detsijogo
Rustom Detsijogo
Janet Tangiro
Lavinia Boiya
Frank Boiya
Moira Boiya (deceased)
Drake Boiya
Eibiaun Boiya
Itswido Boiya

Mr. Depaune, a member of the Nauru Lands Committee, informed the Court that the Committee included these thirteen persons because it believed them to be entitled to inclusion as the result of the will of Eimwie. He said that the Committee was no longer of that view except in respect of the land "Ijakabab"; it wished to change its decision in respect of the other portions of land and exclude those people from sharing in them.

The facts of this case are not in dispute. Eangitur was one of a number of children of Adue. She died intestate and without surviving issue at some time after 1962. Eimwie died well before 1962, also without surviving issue. She had been married to a man named Timothy. By her will she devised her portions of land, and her shares in portions of land, to a number of people. She devised her phosphate lands in Buada District to Timothy's children by an earlier marriage; she did not devise any of her other lands to them. The thirteen respondents whom the appellant is seeking to have excluded from sharing in Eangitur's estate are the children and grandchildren of Timothy.

Upon Eangitur's intestacy, her one surviving sister and the children of her brothers and her other sisters were entitled, under customary law and Administration Order No. 3 of 1938, to share in the estate. If she had left issue surviving and they had survived Eangitur also, they would have been entitled to receive her share. But she predeceased Eangitur and did not leave issue surviving.

It has been suggested by Mr. Depaune that the share which would have been Eimwie's if she had survived Eangitur should be distributed to the beneficiaries under Eimwie's will to the extent that the lands concerned come within the description of the lands devised by that will. The only portion of land in this appeal which comes within the description of land devised to the children of Timothy in Eimwie's will is Ijakabab. That is why the Nauru Lands Committee still supports its distribution of Eangitur's share in that land but not its distribution of her shares in other portions of land.

The Court must pay heed to the Committee's views on matters of Nauruan custom relating to inheritance as its members have considerable knowledge and experience of those customs. However, Administration Order No. 3 of 1938, despite its many imperfections, clearly provides that the estate of a person dying intestate without issue is to be distributed among the members of the deceased person's family, that is to say the nearest relatives alive at the time of her death. The children and grandchildren of Timothy are not members of Eangitur's family If Eimwie had survived Eangitur, she would, as her sister, have been entitled to a share in the estate; that share would have formed part of her estate upon her death and, in so far as the provisions of her will applied to the lands concerned, would have passed to the beneficiaries named in her will. But, as she died before Eangitur she never became entitled to a share in Eangitur's estate and it was not hers to devise by her will.

The appeal is, therefore, allowed in respect of all the portions of land to which it relates. The new distribution of Eangitur's estate will be as set out in the judgment in Land Appeals Nos. 2 and 3 of 1973.