The Testate Estate of the late Samuel David George v Smith (2017)

The Intestate Estate of the late Martha Stubblefield Bernard, by and through its Administrator, Ebrima Varney Dempster, of the City of Monrovia, Liberia Plaintiff VERSUS The Testate Estate of the Estate of the Late William Thomas Bernard, Sr., represented by its Executor/Administrator, Archibald F. Bernard, Nancy Freddy Bernard Freeman, Murray Bernard, Vivian Bernard, William Bernard, Leona P. Bernard, Archibald F. Bernard and the Congress Democratic Change (CDC), represented by its Acting Chairman, Nathaniel McGill, of the City of Monrovia. Defendants

ACTION OF EJECTMENT

HEARD: July 18, 2016

DECIDED: September 22, 2016

An action of ejectment is a contest of titles or at best, a clash for the supremacy of titles wherein the stronger and superior title prevails over the weaker ones in consonance with our law on evidence. Although this present appeal emanates from an action of ejectment, unlike a regular title contest where the parties by the preponderance of evidence attempt to demonstrate their superior title and negate the strength of their adversary’s, this case is unique and distinct in that it evolves holistically upon the controversy surrounding the testate estate of William Thomas Bernard, Sr.

As a matter of judicial cognizance, this is the second time that the Supreme Court has been called upon to resolve the controversies surrounding the said testate estate of William Thomas Bernard, Sr. The first appeal is found in the case, Reeves et al., v. Johnson, 28LLR 30 (1979).

The certified records transmitted to this Court show that the ejectment action now on appeal, is deeply rooted and entrenched in the facts and circumstances of the Reeves case. Hence, it is of utmost necessity that this Court goes beyond the present appeal by meticulously exploring the entire history of the case from its origin in 1977 and then present the chronicles which are the antecedents and causation of this appeal.

The undisputed history of this case as gleaned from the records in the Reeves case show that on March 6, 1977, William Thomas Bernard, Sr., died in a tragic motor accident and was survived by his widow, Martha Stubblefield- Bernard and eight (8) children, some of whom are representing the appellants herein.

On June 23, 1977, the Last Will and Testament of William Thomas Bernard Sr., was discovered and same offered for probation before the Monthly and Probate Court for Montserrado County. There being no objection from any party (ies) as to the authenticity of the said will same was admitted and probated. The Last Will and Testament of William Thomas Bernard Sr., being pertinent, particularly the paragraph labeled ‘Third’ thereof, we quote verbatim below:

“LAST WILL AND TESTAMENT OF W. THOMAS BERNARD, SR.

IN THE NAME OF GOD AMEN, I, W. Thomas Bernard, Sr., of the City of Monrovia, County of Montserrado, Republic of Liberia, being of sound mind and deposing memory, but conscious of the certainty of death, do hereby make, publish and declare this as and for my LAST WILL AND TESTAMENT in manner following: hereby revoking and making null and void any and all previous Wills heretofore by me made:

FIRST:

I commend my body to the dust to be buried and my Soul to the God who gave it to dwell with him in life eternal. My worldly goods, I dispose of as follows:

SECOND:

It is my Will that all of my just debts and funeral expenses be fully paid and that my Executors and Executrix hereinafter named provide and erect at the expense of my Estate a suitable monument to perpetuate my memory in the minds of my family and friends.

THIRD:

I gave, devise and bequeath to my four children and wife namely: Murry, Vivian, William, Nancy and Martha Bernard, my dwelling house situated at Sinkor on Lot No: 2 comprising of I acre, to be held by them in joint tenancy.(our emphasis)

I gave, devise and bequeath to my eight children and wife namely: Murry, Leona, Archieboy, Archie, Thelma, Vivian, William, Nancy and Martha Bernard, my Motel situated at Sinkor on Lot No: 2 comprising of 112121​ acre of land, to be held by them in joint tenancy.

FIFTH:

To my eight children: Leona, Archie, Murry, Thelma, Archieboy, Vivian, William, Nancy Bernard, I gave and bequeath one (1) lot each of my lots situated at Bushrod Island and Oldest Congo Town to have and to hold in fee simple.

SIXTH:

I gave, will and bequeath to my children: Leona, Murry, Archie, Archieboy, Thelma, Vivian, William and Nancy Bernard, Lot No: 22 situated on Camp Johnson Road with the buildings thereon to be held by them in joint tenancy. It is my desire however the “YES TRANSPORT SERVICE” which I have started to be carried on said Lot No:22 until said Company is sufficiently strong to obtain another suitable place for the conduct of its business. During the period of the Company’s operation on the said Lot No: 22, Camp Johnson Road, it shall be required to pay no rent whatsoever for the use of said Lot or the buildings situated thereon.

SEVENTH: I gave, bequeath to my children: Murry, Vivian, William and Nancy Bernard, my 25 acres plot of land situated at Paynesville inherited from my Late Father, A.F. Bernard, to share and share alike.

EIGHTH:

I gave and bequeath to my eight children: Leona, Archie, Murry, Archieboy, Thelma, Vivian, William and Nancy Bernard, twenty- five acres of land, Lot No: 7 A, situated at Johnsonville, to share and share alike.

NINTH:

I request and desire that the amount of 400.00(four hundred dollars) monthly excluding salary be given to Karin, Hildogard, Emilie Frieda Buhrig, from the proceeds of “YES TRANSPORT SERVICE” as long as “YES TRANSPORT SERVICE” is in operation and that it be operated by her as long as she remains in Liberia.

TENTH:

I gave, devise and bequeath my entire Rubber Farm to my wife Martha Bernard and Thelma T. Reeves to be held in trust and managed by them for the following uses and purposes in relation to the same, to wit: To manage, control and operate the said Rubber Farm: to collect and receive the proceeds therefrom and to deposit same in a good and reliable Bank until ready for disbursement as hereunder directed. After deducting the operating expenses and charges for the running of the Farm, but not including any amount in said operating expenses for their services) and a reasonable sum not to exceed 2,000.00(Two thousand dollars) each per annum for their services, to pay over to the following persons, or their heirs the certain proportion thereof as mentioned and set hereunder to wit:

W. Thomas Bernard, Jr. 1 (one percent) Leona Bernard 8 (eight percent) Fred Bernard 1 (one percent) Martha Bernard 12 (12 twelve percent) Murry Bernard 9 (9 nine percent) Myrtle Bernard 2 (two percent) Archie Bernard 10 (ten percent) Thelma Bernard 8 (eight percent)

10 (ten percent) 10 (ten percent) 10 (ten percent) 10 (ten percent) 9 (nine percent)

There shall be included in the operating expenses an amount equivalent to not less than 2 (two) % of the gross intake of the Farm, which amount shall be expended for the development of the entire 500 (five hundred) acres owned by me. It is my desire and I hereby direct my trustees to make and pay the above distribution quarterly.

Or, if my trustees above named shall see fit, or deem it advisable, they shall have the right to lease the said plantation to any persons, firm or corporation for a profitable sum annually but provided always, nevertheless, that the bequeaths and distributions above provided for be always promptly and regularly made by and through my trustees.

Each and every Beneficiary under this Trust is hereby restrained from, and are and shall be without right, power and authority to sell, transfer, pledge, mortgage, hypothecate, alienate, or in any manner affect or impair his, her or their beneficial and legal rights, titles, interests, claims and estates in and to the income/or principle of this trust during the entire term thereof. It being my desire and object for as long as any of the Beneficiary shall live.

It is my desire that this trust remain in force for (50) fifty calendar years, after which time the fee simple title shall vest in my children, Archie, Archieboy, Murry, Thelma, Myrtle, William, Vivian, Nancy Bernard and their heirs.

ELEVENTH: I gave, devise and bequeath to my wife and eleven children namely: Thomas, Leona, Archie, Archieboy, Murry, Thelma, Vivian, William, Nancy, Fred and Myrtle Bernard $3\%$ (three and a half) acres land situated at Kakata bearing the number 689, to have and to hold absolutely.

TWELVTH: I gave, devise and bequeath to my children namely: Leona, Murray, Archie, Thelma, Vivian, Archieboy, William and Nancy Bernard, the rest of my property, wheresoever located to all of my children hereinabove named to have and to hold absolutely.

THIRTEENTH: I hereby gave, devise and bequeath to my three children, Thomas, Fred and Myrtle Bernard, Lot No. 2 and a house thereon situated in the settlement of Virginia, to have and to hold in fee simple.

FOURTEENTH: I hereby assign this Lease Agreement between M.E. Payne Harmon and Mrs. Ursula Gross- Smith, Lessor to Thomas Bernard, Lessee, Registered according to Law in Vol. 84- A Pages 219- 221, over to Karin, Hildegard, Emilie, Frieda Buhrig, Lease to be drawn by her or the Life of the Agreement.

FIFTEENTH: I hereby appoint my wife Martha Bernard, my Brother Vivian Reeves and my sisters Myrtle and Thelma Reeves, and Karin Buhrig, Sole Executor and Executrixes of this my Last Wills Testament or Testamentary Papers by me at any time heretofore made; and because of the confidence I have in my Executor and Executrixes, I hereby direct that they be allowed to serve in said capacity without giving Bond or Security whatsoever.

The within and foregoing Instrument consisting of 3 (three) Sheets Legal Ruled Follscap size paper (which includes this sheet) was on the twelfth (12^th) day of February, A.D. 1971, signed, sealed and declared by W. Thomas Bernard, Sr., Testator as and for his Last Will and Testament in the presence of the undersigned, who at his request, in his presence, and in the presence of each other, have hereunto set our hands, at attesting witnesses:

WITNESSES:

W. THOMAS BERNARD, SR. TESTATOR

In consonance with the wishes of William Thomas Bernard Sr., letters testamentary were issued to his wife, Martha Stubblefield- Bernard, Vivian Reeves, Myrtle Reeves, Thelma Reeves, and Karin Buhrig as executor and executrixes of the estate. Thereafter, Martha Stubblefield- Bernard petitioned the Monthly and Probate Court for Montserrado County, for the exercise of her one- third dower right in all the real and personal properties owned by her late husband. The petition which was filed pursuant to section 4.1(4) of the Decedents Estates Law is quoted herein below. Our attention is drawn to count 3 thereof.

“And now comes before this Honourable Court, Martha Bernard, Sr., widow of the late W. Thomas Bernard, Sr., petitioner in the above entitled cause and most respectfully petitions this Honourable Court as follows to wit:

1. That petitioner is the widow of the late W. Thomas Bernard, Sr., who died on the 6th6th of March, A.D. 1977, and also one of the executrices of the Last Will and Testament of the late W. Thomas Bernard, Sr., which has been offered for admission into probate in keeping with law.

2. That in her good judgment petitioner elects to take one third of all shares of stocks owned by the testator, W. Thomas Bernard, in all companies, corporations and businesses, and one third of all bank accounts in any and all banks within the Republic of Liberia and elsewhere in the world that her late husband died in actual or constructive possession of in lieu of whatever and all personal properties or money bequeathed to her under the Will, and one third of all testator’s personal properties except for the furnishings and appliances within the house they lived in at the time of testator’s death, which are reserved to petitioner under the Decedents Estate Law.

3. That petitioner further says that she elects to have a fee simple title of the dwelling house, in which both she (petitioner) and the testator, W. Thomas Bernard, her late husband, lived at the time of his death, together with the ground inside of the fence and any other houses that form a part of the corpus of the estate in lieu of whatever real property testator bequeathed to petitioner and petitioner’s right to one third of all real properties owned by testator at the time of his death. (our emphasis)

“…the widow who has waived her right to take under the Will, and has elected to take under her dower right, which decision on her part has not been objected to by anyone, it is therefore her right to so take. We therefore rule that the Will made by the testator bequeathing to his widow certain properties, as spelled out in the Will, be set aside, and that her petition for admeasurement of dower be and the same is hereby granted and that the executor and executrixes admeasure unto the widow at the proper time her shares as asked for in the petition.”Reeves et al., v. Johnson, 28LLR 30, 41 (1979).

This ruling of the trial court quoted supra, necessitated the first appellate review of the controversies surrounding the testate estate of William Thomas Bernard, Sr., as the other executor and executrixes representing said estate excepted to the trial court’s ruling and applied for a writ of certiorari contending inter alia, that the trial court was in error to modify and correct its previous ruling out of the April term of court, A.D. 1978. The ruling being alluded to was that of April 13, 1978, wherein the trial court ruled that it would first dispose of the petition for proper accounting before the hearing on the petition for dower. The executor and executrixes also challenged the trial court for granting dower in the absence of an inventory of the estate.

The distinguished Associate Justice presiding in Chambers, Her Honor, Angie Brooks- Randolph upon a review of the petition issued the alternative writ, and based upon the returns filed which raised the constitutional issue regarding the widow’s right to dower, the application for certiorari was forwarded to the full Bench of the Supreme Court for hearing and determination. Article V section 11 of the 1847 Constitution which was in vogue provided that “in all cases in which estates are insolvent, the widow shall be entitled to one third of the real estate during her natural life, and to one- third of the personal estate, which she shall hold in her own right subject to alienation by her, by devise or otherwise.” Hence, pursuant to the rule that a lone Justice cannot pass on constitutional issues, the Chambers Justice forwarded the matter to the full bench.

The Supreme Court entertained arguments on May 3, 1979 and subsequently on June 15, 1979, speaking through Chief Justice James A.A. Pierre rendered its Opinion and Final Judgment granting the petition for certiorari and ordered the issuance of the peremptory writ, wherein the trial court was mandated to set- aside the ruling of July 19, 1978 and proceed to hear the case de novo beginning with the statutory requirement that the executor and executrixes conduct an inventory of the estate within two (2) months as of the date of rendition of the Court’s final Judgment. Relevant excerpts of the Supreme Court’s Opinion of 1979are quoted herein below to wit:

“…All estates in Liberia, whether testate or intestate, must be administered and closed within twelve months. Only in cases where there are foreign debts may the estate remain open for longer than twelve months. Nungborv. Fisk, 13LLR 304, 308 (1958). This estate has been under administration for two years. There is no indication that the estate is in debt because there is no inventory filed to show that the estate owes anybody, either in Liberia or abroad. In the absence of the inventory required by statute, it is difficult to say whether the legacies mentioned in the Will are available for distribution to the legatees. Also, in the absence of the inventory and

the appraisers’ estimate, how is the value of the estate to be determined?

For several reason it is necessary to know the value of the estate. The widow has asked for one third of all shares of stock; one third of all bank accounts; and one third of all of the testator’s personal property. The question is, upon what basis would the one third be calculated, in the absence of an inventory to show what is the total, one third of which she elects to be granted to her widow’s dower? How would the government tax fee, which is a percentage of the total value, be assessed at the close of the estate, without knowing what is the value of the estate?

It was argued that estates have been administered and closed without inventory. Whilst this might be true in the case of other estates, that does not mean that the failure to do so in the past is an excuse for violating the law in this case, especially where the widow’s petition for dower has focused the need for compliance with the statute requiring inventory and appraisement…

…It is the primary duty of the probate court, standing in the place of the decedent, to protect all estates – – testate and intestate; and where it is shown during the administration of any estate that the executor or administrator acted in a manner to call into question the honesty of their behavior in the handling of the assets of an estate, it is the duty of the probate court to take immediate steps to protect the estate from wastage, dishonesty and any malpractice which might adversely affect the interest of the legatees and beneficiaries.

…In view of the foregoing, we are of the opinion that the petition for certiorari should be and the same is hereby granted, and the peremptory writ is ordered issued. The clerk of this Court is ordered to send a mandate down to the court below commanding the respondent judge to resume jurisdiction over the estate, and proceed to handle same de novo, beginning with the requirement that the executor and executrixes file within two months of this date an inventory of all the assets of the estate according to the requirements of the statute.” Reeves et al., v. Johnson, 28LLR 30 (1979).

This Court is in total agreement with the decision in the Reeves case hence, the principles and laws articulated therein are hereby affirmed and confirmed, and we hold that absent the requisite inventory establishing the value of all real and personal properties of an estate as provided for under the requisite provision of the Decedents Estates Law, the admeasurement of a surviving spouse’s one- third dower right in the estate of the deceased spouse could not have been granted by the probate court.

This being said, the Court shall now proceed with those aspects of the present and second appeal emanating from the ejectment action. But before embarking thereon, we deem it expedient to recap those pertinent facts from the Reeves case that are correlated to this appeal, as follow:

a) That Martha Stubblefield-Bernard in her petition for her one-third dower waived her right to inherit under the Will of her late husband.

1. That the executor and executrixes representing the testate estate of William Thomas Bernard, Sr., while conceding the legal standing and entitlement of the late Martha Stubblefield- Bernard to one- third dower right in her late husband’s estate, contended that same could only be admeasured after an inventory of the estate.

c) That the Supreme Court upheld the contention of the executor and executrixes and further mandated that the estate having remained opened for over two (2) years beyond the statutory period, the inventory of the entire estate be conducted within two (2) months commencing as of June 15, 1979.

Martha Stubblefield- Bernard died intestate sometime in 1990 during the course of the Liberian Civil War. The heirs of William Thomas Bernard, Sr., thereafter entered the property subject of these proceedings and leased same to the Congress for Democratic Change (CDC) thus making the CDC a party of interest to be affected by the decision and judgments of these proceedings. Civil Procedure Law, Rev Code 1:5.51; Weeks v Ketter and Gurley, 13LLR 223, 229 (1958); Sio v. Sio, 35LLR 92, 97 (1988). On November 21, 2014, the administrator of her estate, Ebrima Varney Dempster, the appellee herein instituted an action of ejectment in the Sixth Judicial Circuit Court, Montserrado County against the heirs, the executors and executrixes of the testate estate of William Thomas Bernard, Sr. and, the Congress for Democratic Change (CDC) alleging illegal occupancy of the premises belonging to the intestate estate of Martha Stubblefield- Bernard. The appellee attached to its complaint the letters of administration issued its representative, Mr. Dempster, purported records of the Monthly and Probate Court for Montserrado County, the deed issued by the administrator de bonis non in favor of Martha Stubblefield- Bernard, and prayed the trial court to evict the appellants, and hold them liable in the amount of US 1,000,000.00 (One Million United States Dollars) for illegal occupancy, withholding and damage to the property of the intestate estate of Martha Stubblefield- Bernard. The appellee’s fourteen (14) count complaint is quoted herein below to wit:

1. “Plaintiff, the Intestate Estate of the late Martha Stubblefield Bernard, brings this Complaint by and thru its Administrator, Ebrima Varney Dempster, of the City of Monrovia, County of Montserrado, Republic of Liberia, as can be more fully seen from LETTERS OF ADMINISTRATION issued to the said Ebrima Varney Dempster on the 15th15th day of November, A.D. 2014, a copy of which is hereto attached and marked Plaintiff’s EXHIBIT “P/1” to form a cogent part of Plaintiff’s Complaint.

2. Plaintiff says it is the legitimate, bona fide and legal owner of a parcel of land, with the building(s) constructed thereon, enclosed in a concrete fence, comprising four point two three (4.23) acres of land, of which the deceased, Martha Stubblefield Bernard, was seized up to the time of her demise.

3. That the said parcel of land, with the building(s) thereon, enclosed in a concrete fence, is situated and lying in Sinkor, Monrovia, Montserrado County and bearing in the authentic record of said County the number block No. 2, bounded and described hereunder, and as can be more fully seen from the certified copy of the Administrator’s Deed from the Ministry of Foreign Affairs, which is attached hereto as EXHIBIT “P/2” to form a cogent part of Plaintiff’s Complaint. The metes and bounds are as follows:

4. Plaintiff says the said property, subject of the instant Action of Ejectment, same being the dwelling house of the late W. Thomas Bernard, Sr. and his wife, the late Martha Stubblefield Bernard, was by the Last Will and Testament of the late W. Thomas Bernard, Sr. devised and bequeathed to his four children and wife, namely “Murry, Vivian, William, Nancy and Martha Bernard. Copy of the Last Will and Testament of the late W. Thomas Bernard, Sr. is hereto attached and marked Plaintiff’s EXHIBIT “P/3” to form a cogent part of Plaintiff’s Complaint. Please see paragraph 3 of the Will.

5. Plaintiff says following the death of the late W. Thomas Bernard, Sr., his widow, Martha Stubblefield Bernard, elected to purchase the matrimonial home, consistent with her dower right, as spelled out in the New Decedents Estates Law. Accordingly, she filed a Petition before the Monthly & Probate Court for Montserrado County on the 12th12th day of April, 1977, well within the statutory period of six (6) months following the death of her husband.

6. Plaintiff says the matter of the Petition of Martha Stubblefield Bernard, praying Court for permission to purchase the matrimonial home as part of her dower right travelled to the Honorable Supreme Court of Liberia and the Court remanded the matter for further proceedings at the Monthly and Probate Court for Montserrado County. The Monthly & Probate Court for Montserrado County resumed jurisdiction over the matter and ruled that it would not only have been unnecessary, but also grossly inconsistent with and contrary to the provisions of Chapter 4, Section 4.2 of the New Decedents Estates Law, approved May 26, 1972, to have required the widow to prepare another Petition other than that filed on April 12, 1977, which was within the six (6) months required by statute. Copies of Sheets 2 and 3 of the Minutes of the Probate Court, Thursday, October 23, 1980, containing the Court’s Ruling is hereto attached in bulk and marked Plaintiff’s EXHIBIT “P/4”.

7. Further to count six herein above, Plaintiff says that regular hearing of the Petition of Martha Stubblefield Bernard was held by the People’s Monthly and Probate Court on October 23, 1980, at which time the Petitioner, Martha, Stubblefield Bernard, as well as the estate of the late William Thomas Bernard, Sr. were fully represented by their respective counsels; and that on the same day, that is to say October, 1980, the People’s Monthly and Probate Court granted the Petition of Martha Stubblefield-Bernard to purchase the matrimonial home for the assessed value of United States Dollars Forty- Five Thousand (US$45,000.00). Please see sheets 3 & 4 of Plaintiff’s EXHIBIT “P/4”.

8. Further to count seven (7) herein above, Plaintiff says that upon the rendition of judgment by the People’s Monthly & Probate Court granting Martha Stubblefield- Bernard’s Petition, the Executor and Executrices of the Estate of the late William

Thomas Bernard, Sr., through their Counsel, Counselor Daniel Draper, Sr., excepted to the said Ruling of the Court and prayed for an appeal to the Supreme Court.

9. Further to Count eight (8) herein above, Plaintiff says that on October 30, 1980, about seven (7) days after the judgment granting Petitioner Martha Stubblefield- Bernard’s Petition to purchase the matrimonial home was entered by the People’s Monthly and Probate Court, the Executor and Executrices of the Estate of the late William Thomas Bernard, through their counsel, during the closure of the Estate, begged leave of the Court to withdraw the exception taken and appeal granted on 23rd23rd October 1980, without reservation and that the said application was granted as can be more fully seen from copy of Sheet 2, Paragraph 3 thereof, of the Court’s Minutes of October 30, 1980, hereto attached as EXHIBIT “P/4”.

10. Further to count nine (9) herein above, on the 3rd3rd day of April, A.D. 1984, Martha Stubblefield Bernard filed a Petition in the People’s Monthly and Probate Court for Montserrado County, praying Court for an enforcement of the Court’s Judgment of October 23, 1980. The said Judgment granted her the right to purchase the matrimonial home. Copy of the Petition of Martha Stubblefield Bernard, Praying Court for Enforcement of the Judgment, is hereto attached and marked Plaintiff EXHIBIT “P/5”.

11. Further to count ten (10) herein above, Plaintiff says on the 4th4th day of April, A.D. 1984, the Court ruled thus:

The Court hereby also further decrees that an Administrator Deed de bonis non be made and issued and executed to Martha Stubblefield- Bernard for Lot No. Block 2, (Party of) “a parcel of land situated in Sinkor, Monrovia, Montserrado County, R.L. in keeping with the Petition, described as follows to wit:

“Commencing at the Southeastern intersection of Tubman Boulevard and the road leading to Bernard’s Beach and running on magnetic bearings, thence running South 34 degrees 45 minutes West, 427.00 feet to a point; thence running South 30 degrees 45 minutes East 180.15 feet to a point; thence running South 45 degrees 02 minutes 42 seconds East, 63.11 feet to a point; thence running North 65 degrees 00 minutes East, 593.75 feet to a point; thence running North 55 degrees 15 minutes West, 525.18 feet to the place of commencement and containing 4.23 acres of land and no more”.

“It is further decreed that Emma L. Campbell be and she is hereby appointed Administrator “de bonis non” for the purpose of issuing the Administrator Deed de bonis non aforesaid to Petitioner Martha Stubblefield- Bernard for the dwelling house in which both Petitioner and Testator lived at the time of his death together with the grounds in the fence and any other houses that form part of the grounds in the fence as described in the foregoing paragraph immediately preceding this”. Copy of the said Ruling is hereto attached and marked Plaintiff’s EXHIBIT “P/6”.

12. Further to count eleven (11) herein above, Plaintiff says based on the said Ruling herein cited above, Emma L. Campbell, then Administrator “de bonis non” issued Martha Stubblefield Bernard a deed for the property on the 4th4th day of April, A.D. 1984. A copy of the said Deed is hereto attached as Plaintiff’s EXHIBIT “P/2”.

13. Plaintiff says that it has suffered damages on account of the illegal withholding of its property by Defendants; and that, in addition to evicting and ejecting Defendants from the said premises, Plaintiff is demanding damages in the amount of US$1,000,000 (United States Dollars One Million) for the illegal entry, withholding and damaging of Plaintiff’s property, despite repeated demands and warnings to vacate Plaintiff’s property.

14. Plaintiff says justice and equity will be best served if the Defendants are evicted and made to pay damages for wrongfully depriving Plaintiff of its property.

WHEREFORE, AND IN VIEW OF THE FOREGOING, Plaintiff prays Court to enter Judgment against Defendants and order as follows:-

(i) To oust, eject and evict the Defendants from the subject land; (ii) to award Plaintiff damages in the amount of US$1,000,000 (United States Dollars One Million) for the illegal entry, detention and damage to Plaintiff’s Property; and (iii) to rule all costs against the Defendants; and grant unto Plaintiff any other and further relief as in such cases is made and provided by law.”

On December 21, 2014, the appellants and co- defendant Puchu Leona Bernard filed separate answers to the complaint denying the averments therein. However on December 15, 2014 the appellants withdrew their original answer and filed an amended one basically stating that no inventory was conducted as mandated by the Supreme Court in its Judgment of June 15, 1979; that Counsellor Daniel Drapper Sr., was never retained to represent the testate estate; that the conveyance of the property to Martha Stubblefield- Bernard is a product of fraud and misrepresentation and therefore the property deeded to her still remain within the testate estate thus belonging to the four legatees as per the Will. The appellants’ amended answer of December 15, 2014 and co- defendant Puchu Leona Bernard, respectively, are quoted herein below to wit:

1. “That count one of Plaintiff’s Complaints presents no traversable issue for the fact that neither the Intestate Estate of the late Martha Stubblefield Bernard or its Administrator is of any concern to Defendants.

2. That at as to count two of the Complaint, Defendants submit and say that they are the bona fide and legitimate owners of a parcel of land leased to the Congress for Democratic Change (CDC), which piece of property is located, lying and being situated in oldest Congo Town with a buildings thereon containing one (1) acre of land of which the late Thomas W. Bernard was seized of up to the date and time of his death on March 6, 1977. Attached hereto and marked Defendants’ Exhibit “A” to form a material part of this Amended Answer is copy of the deceased title deed.

3. That as to count three of the Complaint, Defendants submit and say that the averment as set forth and contained therein is false, misleading and a complete misrepresentation of the facts and circumstances of this matter because the property so described herein count three of the Complaint was procured through fraud, deceit and misrepresentation because of April 12, 1977, Complainant, Martha Stubblefield Bernard filed a Petition before the Monthly and Probate Court for Montserrado County praying court to allow her exercise her right of elections to take one third of all shares stocks owned by the Testator, W. Thomas Bernard, Sr. in all companies, corporations and businesses, and one third of all bank accounts in any and all banks within the Republic of Liberia and elsewhere in the world that her late husband, died in actual of constructive possession of in lieu of whatever and all personal properties or money bequeathed to her under the Will and one third of Testator personal properties except for the furnishings and appliances within the house they lived in at the time of the Testator’s death, which are reserved to Petitioner, under the Decedents Estates Law, and further she, elected to have fee simple title to the dwelling house, in which both she and her late husband, lived at the time of his death, together with the grounds inside of the fence and any other houses that form a part of the corpus of the estate in lieu of whatever real property Testator bequeathed to Petitioner and Petitioner’s right to one third of all real properties owned by Testator at the time of his death.

4. And also because Defendants aver and say that although Petitioner filed her petition for the Court to grant her certain elected properties of the estate in lieu of the devises and bequeaths made to her by the Will, no NOTICE of this petition was serve on the other executor and executives up to the time they applied to the Court for Karin Buhrig, another of the executives, to account for her management of the YES Transport Company.

5. Further to count four above and still traversing count three of the Complaint, Defendants submit that one year later, that is to say, in April 1978, Vivian Reeves, Myrtle Reeves and Thelma Reeves executor and executives of the last will and testament of the late W. Thomas Bernard, Sr. applied to the Monthly and Probate Court for proper accounting to be made by Karin H.E.F. Buhrig, General Manager of YES Transport.

6. Further to count five above and still traversing count three of the Complaint, Defendants submit that during the hearing of widow’s Petition for dover on April 13, 1978, the Applicant requested Court to defer the hearing and finalization of the petition for admeasurement of dover until after the disposition of the application for proper accounting of the assets or other incomes of the estate from which the widow and other legatees and beneficiaries would derive their said benefits. That to this application, the Court entered the following ruling, The Court, the petition of Martha Bernard which has been before this Court for over a year now for the admeasurement of her dover will be passed upon after this Court is satisfied that the or properties to be ad-measured are available.

7. Further to count six and still traversing count three of the Complaint, Defendant contend and say that some four months later, on July 19, 1978, the estate matter was again called for hearing and the widow insisted that the Court hear and

determine her petition for dower right. The Court granted the widow’s petition without any inventory taken as mandated by statutes.

8. Defendants submit that to this ruling of Her Honor Gladys K. Johnson, the Executrixes and Executor excepted and filed a Petition for the Writ of Certiorari, that the Justice presiding in Chambers forwarded the matter to the Full Bench of the Court for determination because of the issue of dower which is constitutional.

9. That the Certiorari was heard pro et con May 21, 1979 and decided June 1, 1979 and granted and the Court mandated the Monthly and Probate Court to resume jurisdiction over the estate and proceed to handle the same de novo beginning with the requirement that the Executor and Executrixes file within two months of this date an inventory of all of the assets of the estate according to the requirements of the Statute, that the Respondent Judge regards as null and void and of no effect everything done the previous handling of this estate without the inventory require by law. Attached hereto and marked Defendants’ Exhibit “B” to form a material part of this Amended Answer is copy of the ruling of the Honorable Supreme Court, Reeves et al v. Johnson.

10. That the Honorable Supreme Court speaking on the issue of admeasurement of dower right held in the case Myrtle Reeves et al v. Gladys K. Johnson 28 LLR 30 (1979, syl. 1 and 2, text @ page 42, “The Decedents Estates Law and Probate Procedure Code mandatorily require that in all estate, whether testate or intestate, an inventory must be taken showing all of the assets of the estate within a maximum of two months after the granting of the letters. The law also requires that should additional assets be discovered after the first inventory, another inventory called a supplementary inventory shall be taken.” That in the instant case, even though the Honorable Supreme mandated the Monthly and Probate Court Judge to resume jurisdiction, order and inventory to be taken of the estate assets and appoint appraiser to appraise the properties of the estate she failed, neglected and refused to so do. Hereto attached and marked Defendants’ Exhibit “C” to a material part of this Defendants’ Amended Answer is copy of a Clerk Certificate to the effect that the Court did not order inventory and appraisal of the assets of the estate and that there are of records of inventory and appraisal.

11. Defendants submit and say that the hearing out of which the Monthly and Probate Court ordered the issuance of an Administration Deed to the late Martha Stubblefield Bernard was illegal and mired with fraud and deceit because Defendants was not notified and as such all actions by Monthly and Probate Court in handling the estate are null and void and without any legal effect, hence, Plaintiff’s Complaint must be denied and dismissed.

12. Defendants submit and say that count four of the Complaint present no traversable issue since in fact it is public that the late William Thomas Bernard willed and bequeathed his dwelling house to four of his children and his late wife Martha S. Bernard.

13. Further to count six above and still traversing count four of the Complaint, Defendants submit that the practice and procedures in this jurisdiction horary

with time is that a surviving spouse is to file his or her petition for dower within six months after the grant of Letters Testamentary, which the late Martha Stubblefield Bernard filed April 12, 1977 but before same could be heard, the brothers and sisters of the deceased had filed a Petition for proper accounting. The Petition for dower was not heard until nineteen (19) months after the estate was not close.

14. Still further to count thirteen above, Defendants say that the only people with the authority to have sold the property subject of this litigation are the other four devisees, namely, Nancy, Murray, William and Vivian and nobody else and anything done without their knowledge and consent is illegal and wrongful and void ab initio.

15. That the other devisees should have been requested to issue or cause to be issued in favor of the late Martha S. Bernard a quick claim deed thereby relinquishing their interest in said property, further-more, the late Martha Bernard did not resign her post of Oath as one of the Executrixes of the estate and therefore the alleged purchase of the matrimonial home by her was illegal and it was done with fraud and deceit practiced on Defendants.

16. That as to count five of the Complaint, Defendants submit that the averment as set forth and contained therein is false, misleading and a gross misrepresentation of the facts and circumstances of this matter, Martha Stubblefield Bernard’s so called Petition to purchase the matrimonial home was filed April 12, 1977 but before same could be heard, Defendants Executrixes and Executor filed a Petition for proper accounting, that the court ruled that the Petition for dower right should be defer to a later date and time until a complete inventory of the estate assets is obtain at which time the court could admeasure the dower into the widow as per her petition.

17. That as to count six of the Complaint Defendants say, the Decedents Estates Law provides under Chapter 4, Section 4.1 (4) that, “An election under this section must be made within six months from the date of the issuance of letters Testamentary or Letters of Administration, as the case may be. Written notice of such election shall be served upon any personal representatives in the manner herein provided and the original thereof shall be filed and recorded, with proof of service, in the Probate Court in which such letters were issued. Such notice may be served personally or, if there is regular communication by mail, by mailing a copy thereof, addressed to any personal representative at the place of residence stated in the designation required by Section 107.6 of the Probate Court procedure code”. In the instant case, the late Martha Bernard failed, neglected and refused to issue and serve notice of her desire to exercise her dower rights, and that she failed, neglected and refused to so notified the other executives and executor as requires by Statute, and therefore the purchase of the matrimonial home was illegal and wrongful.

18. That as to count seven of the Complaint, Defendants most respectfully pray Court to take judicial notice of the averment as set forth and contained therein specifically the fact that the petition was filed on October 23, 1980, heard the selfsame October 23, 1980 and granted on October 23, 1980 all in gross violation of the statute controlling.

19. Further to count eighteen above and still traversing count seven of the Complaint, Defendants say that no notice was given to the executors and executrixes of the

Estate of the late W. Thomas Bernard to appear at the hearing of October 23, 1980, because if they were served they would have filed objections to the petition.

20. Further still to count nineteen above and still traversing count seven of the Complaint, Defendants say Mrs. Emma L. Campbell was never Administratrix for the Testate Estate of William T. Bernard for her to have issued in favor of Martha Stubblefield Bernard an Administrator Deed for the property subject of this litigation. That at the time of the hearing of the purported petition for dower right, the executors ad executrices of the Testate Estate of William Thomas Bernard were all alive and still acting as executors and executrices for the Estate and as such Emma Campbell could not have given Martha Stubblefield any Administrator Deed therefore the title deed issued to Martha Bernard allegedly by Emma Campbell is the work of fraud, deceit and misrepresentation.

21. That as to count eight of the Complaint, Defendants submit that at no time did the Testate Estate of William T. Bernard hired any Lawyer called Daniel Draper for that matter, that the lawyer for the estate was the late Counselor Joseph J.F. Chesson, who represented the estate during the hearing of the Petition for proper accounting and the Certiorari before the Honorable Supreme Court, therefore count eight of the Complaint must be denied and dismissed.

22. That as to count nine of the Complaint, Defendants say that assuming without admitting that there were hearing and that the executors and executrices of the Testate Estate of William Thomas Bernard were all present and with their lawyer, why didn’t they issue the title deed to the property to Martha Stubblefield Bernard instead of Emma Campbell, and who made her Administratrix de bonis non when the executors and executrices were all present during the hearing.

23. Further still, the averment as set forth and contained in counts eight and nine of the Complaint are all false, and the work of fraud and deceit merely intended to deprive Defendants of the use and quiet enjoyment of their property, hence, Plaintiff’s Complaint should be denied and dismissed in its entirety.

24. That as to count ten of the Complaint, Defendants say that Plaintiff’s Exhibit P/4 is not a petition but rather a copy of Court minutes of October 22, 1980 of the hearing of the probation of a title deed issued in favor of Francis C. Wilson by Edwin J. Gabbidon and the hearing of the issue of tax payment and legal fees owe to Cllr. Julia Gibson by the Testate Estate of William Thomas Bernard and not a Petition for the enforcement of Judgment as is being falsely alleged by Plaintiffs. Court is respectfully requested to take judicial notice of Plaintiff’s Complaint page 3 Exhibit P/4.

25. That count eleven of the Complaint is a complete work of fraud and deceit, that the executors and executrices were all still alive serving in the position of such executors and executrices yet the Court did not order them to issue in favor of Martha Stubblefield Bernard an Executor Deed but chose to appoint Emma

Campbell as Administratrix de bonis non to do so, which amounts to a fraud.

26. Further to count twenty- five above and still traversing count eleven of the Complaint, Defendants submit and say that the house subject of this litigation is the bona fide property of Defendants and not Plaintiff as is being falsely alleged by Plaintiff Exhibit P/2. Court is most respectfully prayed to take judicial notice of Plaintiff’s Exhibit P/2.

27. Defendants further submit and say that Plaintiff’s Exhibit P/5 is not a Court ruling rather a Petition allegedly filed by Martha Stubblefield Bernard praying Court for the enforcement of ruling handled down on October 23, 1980. Court is most respectfully requested to take judicial notice of Plaintiff’s Exhibit P/5.

28. That as to count twelve of the Complaint, Defendants say that the averment as set forth therein is misleading and the work of fraud and deceit because Plaintiff inform this honorable Court that his title deed was issued on April 4, 1984 but the issuance date of the title deed as first written by Emma L. Campbell is July 5, 1984. Court is most respectfully requested to take judicial notice of P/2 as annexed to Plaintiff’s Complaint.

29. Defendants submit that as to count thirteen of the Complaint, Plaintiff have not suffer any damages attributable to Defendants because the property, subject of this lawsuit does not belong in any way to Plaintiff, therefore Plaintiff’s claim of US$1,000,000.00 (One Million United States Dollars) constituting damages for withholding his property must be denied and dismissed and this Defendants so pray.

30. That as to count fourteen of the Complaint, Defendants say that justice and equity will best be serve when this Honorable Court and Your Honor deny and dismiss Plaintiff’s Complaint in its entirety, claim of damages and order that Defendants remain in unrestricted possession of the property.

31. Defendants deny, disclaim, refute and refuse all and singular the allegations of both law and facts as set forth and contained in Plaintiff’s Complaint which were not made a subject of a special traverse in this Defendants’ Amended Answer.

WHEREFORE, and in view of the foregoing facts and circumstances, Plaintiff most respectfully prays Your Honor and his Honorable Court to bring Judgment against Plaintiff, and thereafter rule all costs against Plaintiff and grant unto Defendants any other and further relief deemed legal, just and equitable.”

On December 1, 2014, co- defendant Puchu Leona Bernard also withdrew her original answer and filed an amended answer wherein she stated that the property, subject of the ejectment action is part of the testate estate of Thomas Bernard Sr., and that by his Will devised same to his four children and his wife and as such the intestate estate of Martha Stubblefield- Bernard cannot hold said property in fee simple where there are surviving legatees. The co- defendant Leona P. Bernard’s amended answer is quoted herein below to wit:

1. “That she Leona P. Bernard is one of the heirs of the late W. Thomas Bernard and as such she is bound to respond to the allegations contained in the complaint that Plaintiff is the legitimate and bona fide owner of a parcel of land with the buildings thereon enclosed in a concrete fence,

comprising 4.23 acres of land does not exist.

2. That Plaintiff avers and says that he is the legitimate owner of a parcel of land with the buildings situated thereon enclosed in a fence comprising 4.23 acres of land in which the late Martha Stubblefield- Bernard was seized of up to the time of her death does not exist and is a blatant lie to deceive this Honorable Court and part away with property that does not belong to her.

3. That Co- Defendant says that the dwelling house located on lot #12 in Sinkor, Monrovia situation on one acre of land was devised by the late William Thomas Bernard in his last Will and Testament to his children and to his wife Martha Stubblefield- Bernard now deceased jointly and that the said Martha Stubblefield- Bernard having passed away the said property now goes to the remaining beneficiaries, hence, said property cannot be a part of the intestate estate of Martha Stubblefield- Bernard.

4. That the Martha Stubblefield- Bernard having lived her entire life time as a joint tenant under the Will upon her death her heirs cannot inherit any interest in the said dwelling house but that the property passes to the remaining joint tenants namely, the children.

5. That the price of the dwelling house was arbitrarily determined by the widow Martha Stubblefield- Bernard without consideration to the true market value of the said building which is contrary to law. Further also, there is no showing of evidence that any of the beneficiaries received any money as the purchase price of the dwelling house and therefore no purchase was legally consummated.

6. That because Co- defendant says that the dwelling house of the late W. Thomas Bernard being devised and willed to his children and his wife, Martha Stubblefield- Bernard same cannot be a part of the Intestate Estate of Martha Stubblefield- Bernard especially so when she was one of the Executrixes to execute his last Will and Testament. That the late Martha Stubblefield- Bernard having passed away in 1980, the said property goes to the remaining beneficiaries.

7. Moreover, that by administering the oath to the widow and other executor and executrix and by agreeing to take the oath, Martha Stubblefield- Bernard agreed that she was not seized of the property at the time of her death. That she had parted title.

8. That as a further manifestation to shoe that the property in question belongs to the late W. Thomas Bernard, attached hereto are deeds executed by Martha Stubblefield- Bernard to W. Thomas Bernard indicating that the property in question belongs to W. Thomas Bernard. Attached hereto is a copy of the deed from Martha Stubblefield- Bernard to W. Thomas Bernard marked exhibit D/1 in bulk to form a cogent part of this answer.

9. As a further manifestation that said property containing the dwelling house was Willed by the late William Thomas Bernard to his wife and children,

co- defendant says that the death certificate of the late William Thomas Bernard attached to this answer marked Exhibit D/2 indicates that the said deceased was at the time of his death living in the said property.

10. Moreover, there is no showing that Petitioner Martha Stubblefield- Bernard ever made payment for the said parcel of land and to whom was said amount paid when the property was willed to her and the other children of the late W. Thomas Bernard. The Will was never challenged in court.

11. That after the ruling from the Monthly & Probate Court, petitioners, the other remaining heirs fled to the Supreme Court of Liberia on a Writ of Certiorari. At the end of the hearing, Certiorari was granted. Attached herewith are copies of the Ruling of the Honorable Supreme Court of Liberia marked exhibit “D/3” to form a part of Co-Defendant’s Amended Answer.

12. That as to counts two (2) to fourteen (14) same is a sham pleas in that the property in question had long since passed on to W. Thomas Bernard, Sr. by virtue of warranty Deeds issued to W. Thomas Bernard, Sr. by Martha Stubblefield-Bernard, Hilda Luke and Edith Dennis respectively.

WHEREFORE, and in view of the foregoing law, facts and circumstances, defendant prays this Honorable Court to deny and dismiss plaintiff’s complaint in its entirety, grant this amended answer, and rule the costs in these proceedings against the plaintiff; and further prays Your Honor to grant unto co- defendant any and all further relief that may seem to be just, legal and equitable in the premises.”

The appellee also withdrew its original reply and filed an amended one on December 22, 2014, confirming the averments in its complaint and maintaining that the trial court did grant the election by Martha Stubblefield- Bernard to her matrimonial home as her dower right in lieu of her interests in the estate of her late husband; that the estate was subsequently closed and therefore the property in question is part of the intestate estate of Martha Stubblefield- Bernard and not the testate estate of William Thomas Bernard Sr.

On January 13, 2015, the appellants filed a motion to strike the appellee’s amended reply wherein it generally alleged without any specificity that the appellee had attached and pleaded new documents to the amended reply which according to the appellants violates the principle of notice. On January 15, 2015, the appellee filed its resistance, stating that the appellants failed to specify the new document that was allegedly attached to the amended reply and again recounted the averments in the complaint and prayed that the trial court deny and dismiss the motion to strike. On January 17, 2015, the trial court sustained the appellee’s resistance and denied the appellants’ motion to strike and thereafter on January 23, 2015, ruled the case to trial.

On the first day of trial, that is on March 19, 2015, the appellants filed a motion for newly discovered evidence and attached an affidavit signed by Karin Buhrig

wherein she averred that she is one of the surviving executrix of the testate estate of William Thomas Bernard, Sr.; that there was no inventory conducted on the said estate; that the lawyer for the estate was the late Counsellor Joseph J. F. Chesson who was slain during the 1980 coup; that she was unaware of any proceedings in the trial court leading to the closing of the estate and that the conveyance of the property to Martha Stubblefield- Bernard was illegal since the surviving executor and executrixes were still alive when the estate was allegedly closed.

On the same date of March 19, 2015, the appellee spread its resistance on the records of the trial court stating that it will traverse the affidavit of Karin Buhrig at trial. Before going further, we deem it appropriate to address the admissibility of the said affidavit. The affiant, Karin Buhrig did not appear in court to authenticate that indeed she was the person who executed the affidavit and the contents thereof. The Supreme Court has held that “when documentary evidence is proffered with pleadings, said document must be testified to by witnesses, marked by court and confirmed by witnesses before being admitted into evidence to form part of the record in the case.” In Re: The Petition of Massaquoi and Gibson v Dennis, 40LLR 698, 705 (2001); Weah v. The Management of the National Port Authority, 43LLR 56, 64 (2005); Eleanor Harriet Taylor- Cooper v. Baker, Supreme Court Opinion, March Term A.D. 2015. Absent compliance with these principles of law, the affidavit of Karin Buhrig and the averments therein are inadmissible and not worthy of our review.

Upon the continuation of trial the appellee, the intestate estate of Martha Stubblefield- Bernard produced two witnesses in persons of Ebrima Varney Dempster, the administrator and Madam Ophelia Hoff- Saytumah, a friend to Martha Stubblefield- Bernard. Mr. Dempster testified that after the demise of William Thomas Bernard, Sr., Martha Stubblefield- Bernard waived her share in her late husband estate by electing the matrimonial home where she and her late husband lived in up to the time of his death. A Relevant excerpt of the witness’ testimony on this point is quoted herein below:

“…my grandmother felt that the property was important, it was her matrimonial home, it was the house that she and her husband married in and died in. And, she decided to petition the court and the family to grant her permission to elect the house. The court heard her petition and granted her permission to elect the house at the value of $45,\mathrm{000.00.}ThelateWilliamThomasBernardEstatewasvaluedat$ 435,000.00. My grandmother one- third of the $435,000.00wasbetween$ 125,000.00 to (135,000.00. She decided to waived her one- third which was way above the value of the home she was asking the family to give her. Her petition was granted but up to 1984 the judgment had not been [enforced] passed, they had not turned the house over to her; so she petitioned the court again to go ahead and enforce its ruling. In 1984 the court enforced the ruling and the house was turned over to my grandmother and she lived in that house up till her death.”See court’s minutes, 3rd Day Jury Sitting, March 19, 2015 pages7- 8

The appellee’s second witness, Ophelia Hoff- Saytumah, narrated similar accounts as the first witness, to the effect that as a very close friend to Martha Stubblefield Bernard she was cognizant of the events surrounding the tragic death of William Thomas Bernard, Sr., and that thereafter, his children, also beneficiaries under the Will to the matrimonial home, requested Martha Stubblefield- Bernard to leave the matrimonial home. The witness also testified that Martha Stubblefield- Bernard

subsequently petitioned the court to purchase the dwelling house and that she (Witness) loaned to her certain monies toward the purchase which was reimbursed after the estate was closed.

The appellants on the other hand failed to produce any witness(es) except for Leona P. Bernard, one of the heirs under the will of William Thomas Bernard, Sr. Leona P. Bernard’s testimony, which failed to prove the essential elements of fraud, as alleged by the appellants, was centered on the fact that the surviving spouse, Martha Stubblefield Bernard had no capacity under the law to exercise her right of election because she was a co- executor of the estate. Moreover, Leona P. Bernard also testified that the records proffered by the appellee were a product of fraud because an inventory of the estate was not conducted.

At the conclusion of the trial, the lower court entering final judgment on the 15th day of May A.D. 2015, made the following pertinent findings, conclusions and judgment:

1. As to the first issue, whether Martha Stubblefield- Bernard had the right to apply to the Monthly & Probate Court to purchase the Matrimonial Home, the Court takes recourse to Section 4.2 of the Decedents Estate Law, under the caption, Rights of surviving spouse to purchase matrimonial home, states: “If the estate of a decedent comprises an interest in fee simple in a dwelling house in which is not subject to an existing spouse was resident at the time of the decedent’s death and which is not subject to an existing homestead exemption as provide in the Civil Procedure Law the surviving spouse may, by notice in writing, require the personal representative to appropriate the said interest in the dwelling house toward the satisfaction of the share of any surviving husband or wife in the estate of the decedent under the will or under the provisions of section 3.2, including an election under section 4.1. Such notice shall be ineffective unless served within six months from the issuance of letters to the personal representative. During such period of six months, the personal representative shall not, without the consent of the surviving spouse, sell or otherwise dispose of the said interest in the dwelling house”.

2. This Court gleans from the minutes of the People’s Monthly & Probate Court for Montserrado County that William Thomas Bernard died on March 6, 1977. Exactly one month and six days after his death, his widow, Martha Stubblefield- Bernard, applied to the Court for leave to buy the matrimonial home, together with the grounds in the fence, comprising 4.23 acres, pursuant to her dower right. At the time of the filing of the Petition for dower right by Martha Stubblefield- Bernard, the brothers and sisters of the late William Thomas Bernard, Sr., Executor and Executrixes, had filed a petition for Proper Accounting against Ms. Karin Buhrig, one of the other Executrixes. The Probate Court ruled that the Widow’ Petition for Dower be set aside until after the disposition of the Petition for Proper Accounting and the filing of an inventory by the Executor and Executrixes. When the Probate Court sought to rescind its own Ruling after term

time, one of the Executrices, Myrtle Reeves, fled to the Supreme Court granted the Peremptory Writ and held that dower cannot be admeasured without an inventory of Estate. The Supreme Court’s instructions were as follows:

“In view of the foregoing, we are of the opinion that the Petition for Certiorari should be and the same is hereby granted, and the Peremptory Writ is ordered issued. The Clerk of this Court is ordered to send a mandate down to the court below commanding the respondent judge to resume jurisdiction over the Estate, and proceed to handle the same de novo, beginning with the requirement that the Executor and Executrices file within two months of this date an inventory of all of the assets of the Estate according to the requirements of the Statute; and that the respondent Judge regard as null and void and of no effect everything done in the previous handling of this Estate without the inventory required by law”. Reeves et al. v. Johnson 28 LLR 30 (1979)

3. Upon the return of the matter to the Probate Court, the Probate Court resumed jurisdiction and assigned the hearing of the Petition of Martha Stubblefield-Bernard for October 23, 1980. It is worthy to note that the Inventory and Appraisal had already been filed with the Court prior to October 23, 1980. Following the hearing of Martha Stubblefield-Bernard’s Petition, the Court ruled as follows:

“Wherefore, in view of the Petition of the widow which was filed within the statutory time as the law directs, and since it is crystal clear that the property which the widow seeks to purchase in her own right is and was the Matrimonial Home of both she and the late W. Thomas Bernard; and also since by virtue of the assessment of the Estate Estate of W. Thomas Bernard the same amounting to not less than US$423.736.70 (Four Hundred Twenty- Three Thousand Seven Hundred Twenty- Six United States Dollars Seventy Cents), she being entitled to one- third (1/3) of the gross total as the admeasurement of her dower, real property for her natural life and personal outright, and since from the said assessment of the Estate of the Matrimonial Home requested by Petitioner to be purchased value US$45,000.00 (Forty- Five Thousand United States Dollars), an amount far below the one- third (1/3) dower right given her under the law, even should this piece of property be assigned to her as a part of her dower right, there still remains the balance”.

“The Petition is in order and supported by law. The Application for the purchase of Matrimonial Home of the late W. Thomas Bernard by his widow, the Petitioner, is hereby granted. This does not detract any reason why the balance of her dower right should be prohibited and it is hereby so ordered”.

4. From the above Ruling, Executor and Executrices excepted and announced an appeal to the Honorable Supreme Court of Liberia. The Appeal was granted. Please see minutes of the People’s Monthly & Probate Court, October 23, 1980, Sheet Three (3).

5. At a subsequent hearing held on October 30, 2980 for the closing of the Estate, the Court held that: “since it has been brought to the Court by Counsel for the Estate that therein a cash assessed available in the Estate of Fifty-One Thousand United States Dollars, the Petitioner is entitled to one-third (1/3) of that amount out right, it is our orders that this one-third (1/3) be withheld by the Estate as a part of the purchase price of the Matrimonial Home and the Widow is required to pay the balance and difference and thereafter deeds be issued in her name. And it is hereby so ordered”.

6. What followed the Court’s orders next is of paramount importance in understanding the proceedings at the People’s Monthly & Probate Court relative to the disposition of the Petition of Martha Stubblefield-Bernard to purchase the Matrimonial Home. Counsel for the Estate spread the following on the records of the Court: “At this stage, Counsel for the Estate begs leave of Court to withdraw the exception taken and the appeal granted on the 23rd23rd day of October, A.D. 1980, without reservation. And respectfully submit”. The Court: “The Application is granted. And it is hereby so ordered”. See the minutes of the People’s Monthly & Probate Court, October 30, 1980, sheet 2.

7. Thus, it is clear that an appraisal was undertaken and an Inventory was filed. Moreover, after the Ruling of the Court, the Counsel for the Estate announced and appeal but decided to withdraw same. The Judgment of the People’s Monthly & Probate Court granting the Petition of Martha Stubblefield-Bernard to purchase the Matrimonial Home; the assessment of the entire Estate at US$423,736.70) Four Hundred Twenty-Three Thousand Seven Hundred Twenty-Three United States Dollars Seventy Cents and the Matrimonial Home at US$45,000.00 (Forty-Five Thousand United States Dollars); and the Court’s Ruling that since Martha Stubblefield-Bernard’s one-third (1/3) share was more than US$45,000.00 (Forty-Five Thousand United States Dollars), the amount of US$45,000.00 (Forty-Five Thousand United States Dollars) be deducted from her one-third (1/3) share and the balance returned to her became res judicata.

8. Subsequent developments confirms that it became necessary for Martha Stubblefield-Bernard to file another Petition on the 3rd3rd of April, A.D. 1984, almost four (4) years after the Court’s Rulings of October 23, 1980 and October 30, 1980, to give effect to the said Rulings of His Honor Judge Napoleon B. Thorpe. Judge Luvenia V. Ash-Thompson heard the Petition and ruled that a deed be issued to Martha Stubblefield-Bernard and same was issued.

9. As to the second issue of what is the effect of granting the right to purchase the Matrimonial Home on a devise made in a will of such Matrimonial Home, the Court notes that the Defendants have argued that the Matrimonial Home was willed to four of the Testator’s children and the wife; and that by the right of survivorship, upon the death of the wife, the property passed on to the four children. Section 4.2 (2) of the Decedents Estate Laws states: “Devise of such dwelling ineffective if spouse exercises right”. “A devise of such a dwelling house to a person other than the surviving spouse shall pro tanto, be ineffective and invalid if the spouse exercises the right conferred under this section”.

10. Clearly, Martha Stubblefield-Bernard having decided to exercise her right to purchase the Matrimonial Home, the devise by the Testator to his four children became invalid. Thus, the property was acquired in fee simple by Martha Stubblefield-Bernard.

11. As to whether the Defendants can raise issue now with respect to defect(s) in the Judgment of the Probate Court, if any, this Court answers in the negative. This position is supported by our Chapter 117, Section 117.17 of the New Estate Law, which provides: “An action or proceeding to set aside any disposition on the real property of a decedent pursuant to an order granted under this Chapter by reason of lack of jurisdiction over any person interested in the estate or by reason of any other defect in these procedure must be brought within ten (10) years after the date of the order. After the lapse of such period, the presumption that the order

was valid and made on due notice and just and reasonable grounds shall be conclusive”. In this case, the Ruling was made on the 23rd23rd day of October, 1980. The Defendants failed to take any action to challenge the said Ruling and the Laws of Liberia (Chapter 117, Section 117.17) now bars them from doing so.

12. During the oral arguments before this Court, counsel for Co-Defendants Archibald F. Bernard et al. (“Black Archie”) argued that the Ruling granting Martha Stubblefield-Bernard’s Petition to purchase the Matrimonial Home was made without notice to the Defendants and that therefore the Ruling must be set aside by this Court. When queried by this Court as to why the Defendants did not Petition the Honorable Supreme Court of Liberia and raise such issue, given the fact that this Court lacks legal authority to set aside a judgment or ruling of the Monthly & Probate Court, counsel for the Co-Defendants did not provide any satisfactory response, beyond his argument that the Ruling should be set aside for lack of notice to the Defendants. This Court notes that the Ruling granting Martha Stubblefield-Bernard’s Petition to Purchase the Matrimonial Home was made on October 23, 1980 and ordered enforced on July 4, 1984, but the Defendants failed without any legal justification or impediment to challenge the legality or validity of the Ruling. In the opinion of this Court, the Defendants having failed, for more than thirty years, to challenge the legality or validity of the Ruling, suffer waiver and lashes and are therefore estopped from raising the issue of lack of notice, even if this Court had authority to review or set aside a judgment or ruling of the Monthly & Probate Court for Montserrado County.

13. During oral arguments before this Court, also counsel for Co-Defendants Archibald F. Bernard et al. (“Black Archie”) argued strenuously that the Administrator Deed de bonison issued to Martha Stubblefield-Bernard for 4.23 acres of land is fraudulent because the Last Will and Testament of William Thomas Bernard states that the land on which the Matrimonial Home is situated contains one lot of land and that therefore the awarding of 4.23 acres of land to the late Martha Stubblefield-Bernard constitutes fraud. Counsel further argued that because Mrs. Martha Stubblefield-Bernard remained or was an executor of the W. Thomas Bernard Estate at the time she petitioned the Monthly & Probate Court for admeasurement of dower, the petition should have been denied; and asked this Court to so hold. This Court is of the opinion, however, that these arguments by the Co-Defendants’ counsel are misguided in three respects. Firstly, the setting aside of a Will by a widow in favor of her statutory share of her deceased husband’s estate effectively nullifies the Will insofar as the widow is concerned. Therefore, when Mrs. Martha Stubblefield-Bernard set aside the Will of her late husband, Mr. W. Thomas Bernard in favor of her statutory share of his estate, she thereby had the right to a third of the entire estate and accordingly, the one-third (1/3) of the estate which she paid for was one-third (1/3) of the entire estate of Mr. Bernard’s including the matrimonial home, the land on which the matrimonial home is situated and the surrounding land owned by Mr. Bernard as well as other real property owned by Mr. Bernard at the time of his death. While it is true that ordinarily, she should have been entitled to a third of Mr. Bernard’s entire real estate for life, in this case she actually paid for the one-third (1/3) of the entire estate and not only the matrimonial home and the land on which the matrimonial home is situated. Therefore the one-third (1/3) of the estate for which she paid was not limited to the matrimonial home and the land on which the matrimonial home is situated as erroneously concluded and argued by counsel for Co-Defendants Archibald F. Bernard et al. (“Black Archie”). Secondly and as stated supra, this Court lacks legal authority to review, reverse or set aside a ruling of the Monthly & Probate Court. Finally, in issuing the Writ of Certiorari in the case Reeves et al. v. Johnson, supra, the Honorable Supreme Court of Liberia held: “The question of whether or not the widow has a legal right to petition the court for admeasurement of dower, in view of and whilst she retains under oath her position of executive of the estate, as well as the question of

whether or not the trial court was in error to entertain the petition for dower is moot. It is settled law that a widow, in all cases, has a legal right to waive the will of her deceased husband and takes her dower. The trial court was correct in ruling the will be set aside and the widow’s petition for dower be granted. The only omission was the grant in the absence of an inventory.” The argument of the Co-Defendants’ counsel that the petition for dower should have been denied because Martha Stubblefield-Bernard was a co-executrix of the estate cannot be entertained by this Court in this appeal as that issue, and indeed the entire matter of the grant of the petition for dower, has become res judicata.

14. As to the issue of damages, this Court notes that Plaintiff prayed for damages in the amount of One Million United States Dollars (US$1,000,000.00). In their Answers, the Defendants admitted that they leased the property out to the Congress for Democratic Change since January 1, 2005. The Lease Agreement executed by and between Archibald F. Bernard, Representative of the Bernard Estate, and George Oppong Weah, represented by his Authorized Representative, is for Fifty Thousand United States Dollars (US$50,000.00) per annum. In the opinion of this Court it would work injustice to the substantial rights of the Plaintiff to allow the Defendants to retain the proceeds of the Lease Agreement between the Defendants and the Congress for Democratic Change (CDC). The doctrine of unjust enrichment requires restitution by the beneficiary of a benefit obtained from another, not intended as a gift and not legally justified to be returned to the other person- in this case the return of the proceed of said lease agreement to the Plaintiff.

JUDGMENT

For all the reasons detailed herein, judgment is hereby entered in favor of the Plaintiff and against Defendants, as follows:

A. The Defendants are ADJUDGED LIABLE to the Plaintiff for the amount of US$500,000.00, which are the proceeds from the Lease Agreement executed by and between the Defendants and the Congress for Democratic Change, CDC.
B. The Defendants are forthwith, evicted, ejected and ousted from the Plaintiff’s premises and the Plaintiff is hereby put in possession of said premises.
C. In addition to being evicted and ousted from the Plaintiff’s premises, the Defendants are hereby ordered to pay to the Plaintiff the amount of One Hundred Thousand United States Dollars (US$100,000.00) for wrongful withholding and detention of the Plaintiff’s premises.
D. The Lease Agreement executed by and between the Defendants and the Congress for Democratic Change, CDC is not binding on the Plaintiff; and as such, it is void and without legal effect as to the Plaintiff.
E. The Clerk of this Court is hereby ordered to issue a writ of possession directed to the Sheriff of this Court, describing the Plaintiff’s premises as

contained in the Administrator Deed de bonis non issued to the Plaintiff by Emma L. Campbell, Administrator de bonis non, commanding the Sheriff of this Court to remove all persons, including the Defendants and the Congress for Democratic Change, CDC, from the premises and to put the Plaintiff into full possession thereof. Further, the Clerk shall, in the Writ of Possession, command the Sheriff of this Court to, in executing his mandate as ordered by this Judgment, seek the assistance of the Emergency Response Unit (ERU) of the Liberia National Police.”

The appellants excepted to the trial court’s ruling quoted supra and announced an appeal to the Honorable Supreme Court.

On May 25, 2015 the appellants filed a 12 count bill of exceptions wherein they assigned as error the following a) that the trial court overlooked the fraudulent conveyance of the property to Martha Stubblefield- Bernard; b) that the probate proceedings leading to the closure of William Thomas Bernard, Sr., estate is a product of fraud; c) that there was no inventory was conducted and; d) that the trial court erroneously awarded 4.23 acres of land to the appellee instead of what was indicated in the Will that the dwelling house was situated on 1 acre of land. The 12 (Twelve) count bill of exceptions is quoted thus:

1. “That Your Honor committed a reversible error when Your Honor inadvertently refused to pass on the issue of fraud raised by Co-Defendants Archibald Bernard et al regarding the procurement of Plaintiff’s title deed on ground that Your Honor and the Judge of the Monthly and Probate Court have concurrence jurisdiction therefore Your Honor could not determine whether the Plaintiff’s deed was procured under fraud or not.

2. Your Honor further committed a reversible error when Your Honor inadvertently said that prior to 1980 October 23rd23rd inventory and appraisal of the Estate had already been filed with the People Monthly and Probate Court and as such the widow was right legally to have applied for her dower right to total disregard to the Clerk Certificate issued in favor of Co-Defendants by the Clerk of the Monthly and Probate Court to the effect that perusal of the case file shows that no inventory was taken and neither was any appraisal made of the Estate.

3. That Your Honor again committed a reversible error when Your Honor inadvertently said that the Testate Estate of W.T. Bernard was accessed at US$423,736.70 and that the matrimonial home was value at US$45,000.00 without any evidence to substantiate such position.

4. That Your Honor further committed a reversible error when Your Honor inadvertently failed, neglected and refused to pass on the title deeds produced by the parties in support of their claim to the property subject of this Action, hence Your Honor’ ruling is a fit subject for reversal.

5. That Your Honor committed a reversible error when Your Honor in open court inadvertently accused Co-defendants of trying to take the Plaintiff’s property by illegally occupying same without any property rights and despite Plaintiff having issued Co-defendants several warnings to vacate surrender his property without any evidence.

6. That Your Honor committed a reversible error when Your Honor inadvertently ignored that fact that Plaintiff’s first witness testified that the late Martha S. Bernard waived her 1/3 for the matrimonial home which was valued at US$45,000.00 and the second witness testified that the late Martha S. Bernard purchased the home from the court, hence, Your Honor’ ruling is a fit subject to be reserved.

7. That Your Honor further committed a reversible error when Your Honor during the trial and in open court inadvertently stated that during and after the coup, nobody was after the Bernard people and that they had no legal reasons to traveled abroad therefore whatever happened in the People Monthly and Probate Court during their absence were their own undoing.

8. That Your Honor also committed a reversible error when Your Honor ignored and thereby inadvertently refused to pass on Co-Defendants argument that the late Martha Stubblefield Bernard purchase of the matrimonial home was illegal, contrary to law, and therefore fraudulent because she was still serving as an executrix of the estate of her late husband which she took oath to protect and defend.

9. That Your Honor further committed a reversible error when Your Honor inadvertently held that because you are without any authority to review, reverse or set aside a ruling of Your Honor predecessor, Your Honor had no alternative but to award the property, subject of the dispute to Plaintiff, despite the fact that the title deed annexed to Plaintiff’s Complaint called for 4.23 acres of land even though the last will and testament of the W.T. Bernard said that the home stands on one acre of land.

10. Your Honor further committed a reversible error when Your Honor inadvertently refused to pass on the issue whether the late Martha S. Bernard has the right to request for admeasurement of dower while still serving as executrix of her late husband’s estate

11. That Your Honor further committed reversible error when Your Honor inadvertently ignored Co-Defendants’ argument that the proceedings in the Monthly and Probate Court for Montserrado County leading to the acquisition of Plaintiff’s title deed were mired with fraud and deceit, and therefore said deed was void and of no legal effect.

12. Your Honor also committed a reversible error when Your Honor inadvertently interpreted Co-Defendants’ argument as a request to undo that which the Judge of the Monthly and Probate Court for Montserrado County did, which was not the case.

WHEREFORE, and in view of the foregoing laws, facts and circumstances, Defendant submits this bill of exceptions for Your Honor’s approval to allow Co- Defendants perfect their appeal to have the Honorable Supreme Court of Liberia review Your Honor’s Final Ruling of May 15th A.D. 2015. “

The appellants’ bill of exceptions and the arguments of both sides advanced during the hearing of this appeal supports this Court’s previous observation that the crux

of the ejectment proceedings now on appeal is premised on whether or not the Supreme Court’s Mandate of June 15, 1979 was executed, mandating an inventory of the estate before the admeasurement of dower and both parties are in serious disagreement thereto. As stated earlier the appellee emphatically stated that the Court’s mandate was enforced and exhibited records and judgment from the Monthly and Probate Court for Montserrado County as proof of its position; on the other hand the appellants have denounced the said records and judgment as products of fraud and collusion thus, taking upon the burden to prove the issue of fraud as required by the law which states that “the burden of proof rest on the party who alleges a fact and that whenever fraud is alleged it must be proven by the party who alleges it.”Civil Procedure Law, Rev Code 1.25.5(1); Francis v. The Mesurado Fishing Company, Ltd., 20LLR 542 (1971) Massaquoi v. Massaquoi, 35LLR 508, 511(1988); Wilson v. Wilson, 37LLR 420, 426 (1994).

The Intestate Estate of Martha Stubblefield- Bernard, the appellee herein argued before us and in its brief, that the Supreme Court’s Mandate of June 15, 1979 was enforced and proffered as evidence thereof, records purportedly made by the Monthly and Probate Court for Montserrado County. The said records show that an inventory and appraisal were conducted and that the estate estate was appraised at a net worth of 423,736.60((Four Hundred Twenty Three Thousand Seven Hundred Thirty Six Dollars and Sixty Cents); that the executor and executives representing the estate estate had petitioned the trial court to close the estate but that the trial court had postponed the hearing on grounds that as Martha Stubblefield – Bernard’s petition for dower was still pending undetermined, the estate could not be closed and as such ordered and scheduled the hearing of the petition for dower on October 23, 1980.

The records relied on by the appellee and challenged by the appellants further show that on October 23, 1980, Martha Stubblefield’s petition was called for hearing but the lawyer representing the estate estate at that time, Counsellor Daniel Draper, Sr., made a submission to the effect that since the widow’s petition preceded the June 15, 1979 Mandate of the Supreme Court, she should re- file same, especially in light of the completion of the inventory of the estate by the executor and executives as directed by the said mandate. We must note that the appellants in this present appeal are also challenging the representation of the estate estate by Counsellor Draper, Sr., as contained in the records proffered by the appellee, asserting that the estate’s lawyer was always Counsellor Joseph J.F. Chesson who met his demise during the 1980 coup and that Counsellor Daniel Draper Sr., was never retained to replace the late Counsellor Chesson.

The records in controversy also revealed that the submission made by Counsellor Daniel Draper Sr., was resisted by Counsellor M. Fahnbuleh Jones the lawyer representing Martha Stubblefield- Bernard, who contended that the Supreme Court’s Mandate of June 15, 1979, did not set- aside the widow’s petition but instructed that an inventory be conducted prior to a determination on the admeasurement of dower. Counsellor Jones also requested the trial court to proceed with the petition for dower as the inventory was completed.

According to the same contested records, on October 23, 1980, after entertaining argument pro et con, the trial court granted Martha Stubblefield- Bernard’s petition for dower by awarding her the matrimonial home where she and her late husband lived up to his demise in lieu of her shares in the estate, noting that the said

election of the matrimonial home valued at (45,000.00 was far less than the value of the testate estate, estimated at 423,736.60.

The records also reveal that the counsel representing the testate estate, Counsellor Daniel Draper, Sr., excepted to and announced an appeal from the October 23, 1980 ruling. However, the records show that on October 30, 1980, he withdrew the appeal, conceded the trial court’s ruling of October 23, 1980 and the testate estate was subsequently declared closed by a decree dated December 1, 1980.

The same records state that on April 3, 1984, Martha Stubblefield- Bernard again petitioned the trial court to enforce its judgment of October 23, 1980, wherein she requested that an administrator’s deed be issued in her favor for the matrimonial home granted as her dower right. On July 4, 1984, Judge Luvenia Ash- Thompson, presiding judge of the Monthly and Probate Court, Montserrado County granted the petition and appointed Mrs. Emma L. Campbell as administrator de bonis non of the testate estate, who in turn issued an administrator’s deed in favor of Martha Stubblefield- Bernard.

As stated earlier, the appellants have zealously challenged the authenticity and validity of the records proffered by the appellee, terming same as a product of fraud. However, unlike the appellee that produced witnesses to verify the allegations and documentary evidence exhibited to its pleadings, the appellants did not produce any witnesses to verify and prove their allegation that the records are a product of fraud. Moreover, besides Leona P. Bernard, one of the heirs who filed a separate answer, and rendered testimony in the proceedings below, the remaining representatives of the testate estate of William Thomas Bernard, Sr., namely, Archibald F. Bernard, Nancy Freddy Bernard Freeman, Murray Bernard, Vivian Bernard, William Bernard, Archibald F. Bernard and the CDC failed and neglected to produce evidence to prove averments in their answer.

Therefore, the entire case of the appellants is premised on their pleadings, which according to law is only intended to provide adequate notice and remove the elements of surprise Knuckles v. TRADEVCO, 40LLR 511, 526 (2001). It is trite law that mere allegation does not constitute proof and that every party alleging a fact must prove same.

With regards to the appellants’ averment of fraud without any iota of proof, the Supreme Court has held thus:

“It is not sufficient that a party merely pleads fraud rather, whenever fraud is alleged or pleaded, the facts and circumstances constituting the fraud must be stated with particularity and proven by the production of every species of evidence which is required to be produced at the trial; and the burden of proof rests entirely on the party who alleges the fraud.” Civil Procedure Law, Rev Code 1.25.5(1); Francis v. The Mesurado Fishing Company, Ltd., 20LLR 542 (1971) Massaguoi v. Massaguoi, 35LLR 508, 511(1988); Wilson v. Wilson, 37LLR 420, 426 (1994).

The appellants having failed to produce witnesses to prove their allegations in order to disprove the appellee’s evidence, and considering all that we have articulated herein this Court cannot and will not presume nothing against a 30 year old record and judgment of the Monthly and Probate Court absent proof of the

allegations of fraud being proven by the appellants. Moreover, it is judicially established within this jurisdiction that any challenge to a judgment, ruling or order of a court must be made before the court that rendered same, or by way of an appeal to a higher court, especially in cases where the judgment, ruling or order is allegedly void for lack of service or other fraud. See Civil Procedure Law, Rev. Code 1:18.1 & 18.2, pages 116-117. This the appellants did not do; they instead, after more than 30 years, now ask this Court to set aside the judgment of the Monthly and Probate Court. This Court cannot, as we are not vested with such authority. And the appellants having waited for a period of more than 30 years to now complain of their absence from the proceedings of the Monthly and Probate Court, laches has set in and they are estopped from complaining.

In view of the arguments advanced by the appellants and upon our close examination of the entire case file, the principal issue not yet been addressed and upon which the Court’s analysis is requisite is whether the Lower Court erred when it held that the appellee has a valid and better title entitling it to an action for ejectment. The action of ejectment is a statutory action designed to test title to real property; and to succeed, a plaintiff must show a present, existing, legal right to the immediate possession of the subject property. This may be established by showing a legal title to the property. It is a requirement that plaintiff must have both the right of possession and a better title than that of the defendant at the time of the bringing of the action. Where the plaintiff produces a deed that is more than 30 years old with no challenge, such deed shall be given greater evidentiary weight and the party challenging said deed must produce counter evidence to void the deed. In the instant case, the appellee produced an administrator’s deed (over 30 years old) showing that Martha Stubblefield-Bernard acquired title to the subject property in 1984. The appellants, on the other hand, failed to produce any evidence or independent witnesses to prove that the deed was a product of fraud. Under the circumstances, the trial judge did not err when he gave greater weight and evidentiary credit to the appellee’s deed and testimony that the property was acquired by Martha Stubblefield-Bernard in fee simple, free from all claims of the devisees under the Will of William Thomas Bernard, Sr. Thus, the appellee has a superior and better title to the property.

The appellants have also argued that the land described in the deed issued to Martha Stubblefield-Bernard is 4.23 acres of land as opposed to the will which states that the dwelling house is on one (1) acre of land. The law in this jurisdiction states that the description of land as to boundaries is more controlling than the quantity. In the case Dunbar v. Gibson, 20 LLR 227 (1971), the Supreme Court held: “In an action of ejectment, the description of the land by boundaries and not by quantity must be controlling where there is any inconsistency between quantity and boundaries.” In the instant case, the appellee’s deed provided both the boundaries and quantity. Therefore, the provision of the deed as it relates to boundaries must control.

We also note, as previously mentioned, that the estate of the late William Thomas Bernard, Sr. was vast, comprising of the following assets, to wit:

1. A dwelling home on a one acre of land located in Sinkor, Lot No. 2;

2. A motel on one and a half acre of land located in Sinkor Lot No. 2;

3. Several real properties located on the Bushrod Island;

4. Several real properties located in Oldest Congo Town;

5. Several buildings inclusive of The Yes Transport Service Inc., located on Camp Johnson Road Lot No. 22;

6. Twenty five acres of land located in Paynesville;

7. Twenty five acres of land located in Johnsonville, Lot No. 7A;

8. One rubber farm located in Kakata;

9. Three and a half acres of land located in Kakata;

10. A dwelling house in the settlement of Virginia; and,

11. Several properties in Germany.

As stated earlier, the Reeves case show that immediately after the issuance of letters testamentary, and within the six (6) months period required by law, Martha

Stubblefield- Bernard waived her interests in her late husband’s vast and lucrative estate listed supra and elected to exercise her one- third dower right by requesting for fee simple title of their dwelling house, in which they both lived at the time of his death, together with the ground inside of the fence and any other houses that form a part of the corpus of the property. This exercise by Martha Stubblefield- Bernard we must note was consistent with the requisite provision of the Decedents Estates Law which state thus:

“The constitutional right of a widow to one- third of her deceased husband’s real estate during her natural life and to hold one- third of his personal estate in her own right subject to alienation by her, by devise or otherwise, is hereby preserved. A widow has the personal right to elect to take such share in lieu of any testamentary disposition or distribution on intestacy provided by her and that said election shall be made within six months after the issuance of letters testamentary or of administration, as the case may be.” See Decedents Estate Law Rev. Code 18.4.1; Whinsant v. Whinsant, Supreme Court opinion, October Term, A.D. 2015.

Also:

if the estate of a decedent comprises an interest in fee simple in a dwelling house in which the surviving spouse was resident at the time of the decedent’s death and which is not subject to an existing homestead exemption, the surviving spouse may, by notice in writing, require the personal representative to appropriate the said interest in the dwelling house toward the satisfaction of the share of any surviving husband or wife in the estate of the decedent under the will or under the provisions of section 3.2 including an election under section 4.1. Such notice shall be ineffective unless served within six months from the issuance of letters to the personal representative. During such period of six months, the personal representative shall not, without the consent of the surviving spouse, sell or otherwise dispose of the said interest in the dwelling house. “The Decedents Estate Law, Rev Code 18.4.2(1).

Further:

“a devise of a dwelling house to a person other than the surviving spouse shall pro tanto, be ineffective and invalid if the spouse decides to exercise the right of election by purchasing the dwelling house as dower right. Such dwelling house shall be appraised at the price it would be sold in open market at the time of the decedent’s death and be appropriated toward the satisfaction of the spouse’s share”.Id4.2(2)(3)

Pursuant to these provisions of the law cited supra we hold that by operation thereof, the devise of a matrimonial home in a Will to other legatees is invalid and ineffective where a surviving spouse exercises the election to purchase the dwelling home as dower in lieu of shares in the decedent’s estate, that is, the testate estate of William Thomas Bernard, Sr.

But before concluding this opinion we will be remiss if we fail to pass on the appellee’s prayer for US $1,000,000.00$ (One Million United States Dollars) for illegal entry, withholding and damage to the property of the intestate estate of the Martha Stubblefield- Bernard. We observed that although the appellee’s witnesses

and the records established title in Martha Stubblefield- Bernard, the witnesses proffered no proof as to the alleged damage to the property by photos or other documents showing the comparison between prior and present conditions of the property; the length of time the appellants withheld the property that could be linked to the prayer for one million United States dollars. The appellee having failed in this regard to warrant the trial court’s awards of US 500,000.00$(FiveHundredThousandUnitedStatesDollars)andUS$ \ $100,000.00$ (One Hundred Thousand United States Dollars) cannot be upheld. However, there is evidence that the appellants withheld the premises if question from the appellee as manifested by the presence of tenants on the premises. Therefore, we hereby award the amount of US) \ $50,000.00$ (Fifty Thousand United States Dollars) for illegal withholding of the property.

Accordingly, the final ruling entered by the Sixth Judicial Circuit Court, Montserrado County in favor of the appellee is confirmed and affirmed and the appellants, the testate estate of William Thomas Bernard, Sr. and the Congress for Democratic Change (CDC) are ordered ousted, ejected and evicted from the premises subject of these proceedings.

WHEREFORE AND IN VIEW OF THE FOREGOING, the judgment of the Sixth Judicial Circuit Court finding in favor of the appellee is confirmed with modification in the amount for illegal withholding stated supra.

The Clerk of this Court is hereby ordered to send a mandate to the Sixth Judicial Circuit Court to resume jurisdiction over this case and proceed in accordance with this Opinion. Costs are ruled against the appellants. IT IS SO ORDERED.

Judgment confirmed with modification

When this case was called for hearing, Counsellor Joseph P. Gibson of Wright and Associates Law Firm appeared for the appellants. Counsellor Frank. Musah Dean Jr., of Dean and Associates Law Offices appeared for the appellee.