Mills v Green et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Ventour, J. |
| Judgment Date | 04 July 2003 |
| Neutral Citation | TT 2003 HC 72 |
| Docket Number | H.C.A. 3840 of 1982 |
| Court | High Court (Trinidad and Tobago) |
| Date | 04 July 2003 |
High Court
Ventour, J.
H.C.A. 3840 of 1982
Mr. Warner for the plaintiff.
Mr. Greene for the first named defendant.
Ms. Blaize for the second named defendant.
Real Property - Determination of entitlement to shares in property — Plaintiffs mother died but she never applied for Letters of Administration for 1/3 interest in the disputed property — Until a grant of Letters of Administration is obtained shares are vested in the Administrator General in accordance with s.10(4) of the Administration of Estate Ordinance — Plaintiff incompetent to bring action — Action dismissed.
The plaintiff has brought this action against the first named defendant claiming, inter alia, a declaration that she is entitled to a share of the property described in the statement of claim. The property is described in paragraph 7(a) of the amended statement of claim as follows:
“All and singular that certain piece or parcel of land situate at Back Street, Tunapuna in the ward of Tacarigua in the island of Trinidad comprising one lot more or less and measuring 60 feet in front and 112 feet in depth (60x112) and bounded on the north by lands of Maud Balthazar on the south by Back Street, on the east by a Road Reserve and on the west by lands of O. Chase together with the buildings thereon and the appurtenances thereto belonging.” (hereinafter referred to as ‘the said property’).
It is important to note that the proceedings by the plaintiff are intituled as follows: “In the Estate of Maria Mills, legal personal representative of Ellen Julien deceased.”
It would seem therefore that the plaintiff has initiated these proceedings in a representative capacity and not in her personal capacity. I shall return to that issue later in this judgment as it forms a major part of the first named defendant's defence.
It is important at the outset to put the plaintiff's claim in an historical prospective. By deed no.639 of 1933 one Cyprian Julien (uncle of the plaintiff) became the fee simple owner of the said property. By his will dated 7th June, 1945 the said Cyprian Julien devised the said property as follows: “To the said Mary Atwell, Ellen Julien and Charles Rambly I gave, devised and bequeath one-third share each of the property consisting of house and land situate at Back Street, Tunapuna.”
Both Mary Atwell and Ellen Julien were sisters of the testator whilst Charles Rambly was his nephew (the son of Mary Atwell). Charles Rambly who was appointed executor of Cyprian Julien's will applied for and obtained a grant of probate on 15th June, 1946. Ellen Julien (the mother of the plaintiff) died on 10th November, 1955 without anything having been done with her one-third share of the said property. Charles Rambly so died on 23rd June, 1963 without dealing with the said property in any way whatsoever. Prior to his death he lived on the said property.
The sole surviving beneficiary, Mary Atwell, then purported to convey as fee simple owner, the said property to her son-in-law James Adona Green (the first named defendant herein) by deed of gift No. 13292 of 1963. In the events that followed, James Adona Green purported to convey, as fee simple owner, the said property to the second named defendant and her husband John Collis Bailey as joint tenants by deed registered as no. 7990 of 1999. This latter conveyance was effected during the course of these proceedings but the information was only brought to the attention of the Court after the trail had begun. Immediately, the Court directed that copies of the writ of summons and other pleadings filed herein be served on the said Julien Smith (the second defendant named herein) to whom the property was conveyed by the first named defendant. Further hearing of the proceedings was then adjourned.
When hearing resumed the said Juliet Smith was represented by counsel and it was by consent ordered on 19th January, 2001 that she be made a defendant in the proceedings and leave was granted for her to file and serve a defence to the plaintiff's claim and to claim (by way of Counterclaim) against the first named defendant any relief she considered appropriate in the circumstances. Accordingly, leave was granted to the plaintiff and the first defendant to amend their Pleadings where necessary.
By his amended pleadings the first named defendant alleges that the plaintiff had no locus standi in the action by virtue of section 3(1) and section 10(4) of the Administration of Estate Ordinance, Chapter 8 No.1 (the Ordinance). The first named defendant also alleges that the plaintiff's claim is statute barred and alternatively he alleges that the action is wholly unmaintainable because of laches, acquiescence and delay on the part of the plaintiff. This defendant Counterclaims for, inter alia, a declaration against the plaintiff that he is entitled to the fee simple in possession of the said property conveyed to him by Mary Atwell and registered as Deed No. 13292 of 1963.
The second named defendant also denies the plaintiff's claim and counterclaims against the plaintiff for a declaration that by deed registered as No. 7990 of 1999 the second named defendant and the said John Collis Bailey became the lawful owners of the said property. As against the first named defendant, the second named defendant claims (without prejudice to her claim against the plaintiff) that the first named defendant had breached the implied convenant for title when he purported to convey the fee simple in the said property to the second named defendant and her husband by Deed No. 7990 of 1999. Alternatively, the second named defendant claims against the first named defendant damages for fraudulent misrepresentations which she alleges the first named defendant made to induce her and her husband to enter into the contract of sale of the said property. The second named defendant relied on sections 2 and 3 of the Misrepresentation Act of 1983 to support her claim for damages.
On the pleadings the following issues arose for determination by the Court:
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(1) Does the plaintiff have any locus standi to bring this action against the first named defendant;
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(2) Did the will of Cyprian Julien create a joint tenancy or tenancy in common among the beneficiaries of the said property.
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(3) Did Mary Atwell acquire an absolute interest in the said property which she was entitled to convey to the first named defendant by deed of gift registered as No. 13292 of 1963;
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(4) Is the first defendant in breach of an implied covenant for title when he purported to convey the fee simple in the said property to the second defendant and her husband;
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(5) Did the first named defendant fraudulently induce the second named defendant and her husband to enter into the contract of sale which was effected by deed of conveyance registered as No. 7990 of 1999.
For reasons which I shall explain later in this judgment I do not propose to deal with issue No. 1 at this stage. I shall begin with issue No. 2.
Did the will of Cyprian Julien create a joint tenancy or tenancy in common among the beneficiaries of the said property when the testator devised and bequeathed one-third share each to the three beneficiaries.
The will of Cyprian Julien made on 7th day of June, 1945 states at paragraph (b) thereof “To the said Mary Atwell, Ellen Julien and Charles Rambly, I gave, devise and bequeath one-third share each of the property consisting of house and land situate at Back Street, Tunapuna.”
It seems quite clear that the testator intended that each of the three beneficiaries take a distinct share (one-third each) in the said property. The words used by the testator for that purpose are words of severance which create a tenancy in common. See the case of Whitehead v. Hemsley [1920] 1 Ch. 298. As tenants in common Charles Rambly, Ellen Julien and Mary Atwell are entitled to a distinct share in the said property. The size of each share is not affected by the death of any of the other tenants. When a tenant in common dies his interest passes under his will to his named beneficiaries or to his next of kin on intestacy; his undivided share is his to dispose of as he or she sees fit.
Did Mary Atwell acquire an actual interest in the said property which she was entitled convey to the first named defendant by deed of gift registered as No. 13290 of 1963.
When Charles Rambly died on 23rd June, 1963 his one-third share would have passed to a named beneficiary under his will or devolved to his next of kin on intestacy. Similarly, when Ellen Julien (the mother of the plaintiff herein) died on the 10th day of November, 1955 intestate her one-third share would have gone to her next of kin, presumably the plaintiff herein. There was therefore no power nor authority vested in the surviving tenant in common, that is, Mary Atwell, to deal with the said property in the way she did. The fact is that when Mary Atwell purported to transfer as beneficial owner, the fee simple interest in the property, to the first named defendant by deed of gift she was in fact not vested with any such power or authority to effect such a transfer.
Moreover, Charles Rambly was appointed as executor of the will of Cyprian Julien. The said will was proved in the Supreme Court of Trinidad and Tobago on 15th day of June, 1946 but the executor died before dealing in any way with the said property. In fact, there was no vesting of the respective one-third shares in the said property to any of the beneficiaries named in the will of the testator, Cyprian Julien.
It is trite law that where an executor to whom a grant of probate has been made, dies without completing administration of the estate and the chain of executorship is broken...
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