Re Joseph, Emmanuel
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 12 May 2010 |
| Neutral Citation | TT 2010 HC 131 |
| Docket Number | 1852 of 2009 |
| Court | High Court (Trinidad and Tobago) |
| Date | 12 May 2010 |
High Court
Kokaram, J.
1852 of 2009
Mr. Prem Persad Maharaj for the claimant.
Ms. R. Hosein for the Registrar General.
Succession - Will — Interpretation — Applicant sought, inter alia, an interpretation of the last Will and Testament of the deceased and an order to expunge various Deeds of Assent and a Power of Attorney — Whether beneficiaries held parcel of land bequeathed to them as tenants in common or joint tenants — What was meant by the phrase “share and share alike as joint tenants” — Use of principles of construction — Concurrent gifts are prima facie joint tenancies — Finding that the beneficiaries were intended to take the property as joint tenants.
The applicant Emmanuel Joseph is the grandson of the late Henry Smith, who died testate on May 22, 1945.
The applicant seeks the following relief inter alia:
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a. An interpretation of the last Will and Testament of Henry Smith (deceased);
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b. An Order to expunge various Deeds of Assent from the records of the Registrar General; and
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c. An Order to expunge a Power of Attorney from the records of the Registrar General.
At the date of his death the deceased was the owner of that parcel of land situate at St. Julien Village, in the Ward of Savana Grande (North) Trinidad comprising Three acres One Rood and Nine Perches be the same more or less bounded on the North by lands now or formerly of W Smith, on the South by the St George East Road, on the East by lands now or formerly of J Harriot and on the West by lands now or formerly of W Smith or howsoever the same may be butted bounded or otherwise described and which said parcel of land is assessed as Number V8 in the Rolls of the District Revenue office, Princess Town, Trinidad and further described in the Schedule to deed Number 268 of 1917 (hereinafter referred to as “the said parcel of land”) (Mr. Henry Smith's title to the said parcel of land was obtained by a Warrant of Transfer No. 268 of 1917 dated 24th January 1917).
The said will of the late Henry Smith is a simple one. It contained only one main provision for the distribution of the testator's estate. The will provided as follows:
“I give devise and bequeath to my sons Gustavius Smith, Caiaphas Smith, Peter Smith, Rasha Smith, Elijah Smith, Nathan Smith and Benjamin Smith and to my daughters Mrs. Henrietta Cooper and Mrs. Drusilla Alexander, all my real and personal property, of which I may die seized or possessed, to their own use, SHARE AND SHARE ALIKE AS JOINT TENANTS.” ( Emphasis mine)
It is this description of the beneficiaries' interest in the said parcel of land “share and share alike as joint tenants” that is the subject of this claim. The phrase “to share and share alike as joint tenants” is contradictory as it purports to give to the beneficiaries an interest in the same property at the same time both as tenants in common and as joint tenants. Thus the main issue before the Court is whether the beneficiaries held the said parcel of land as tenants in common or joint tenants.
The children of the late Henry Smith and beneficiaries under the will have since died. The applicant's father, Nathan Smith, was the last beneficiary under the will to depart this earth. If the devise created a tenancy in common it would mean that the estate of each of the beneficiaries would be entitled to a share in the said parcel of land. However if the words in the will properly constructed created a joint tenancy, then by the principle of survivorship, the said parcel of land would have been vested in the estate of the applicant's father as he was the last surviving beneficiary. Accordingly the applicant, who has since obtained a grant of probate for the estate of his father on 13th September 2001, and is the sole beneficiary named in his father's will, would if this construction prevails, be entitled in law to the said parcel of land.
The Court is therefore being asked to properly construe the words “to share and share alike as joint tenants” used in the said will. Churaman, J.A. in Miller v. Wallace (2002) 67 W.I.R. 1, lamented the difficult position in; construing ambiguous terms in a will, when the ill advised choice of terms or general usage of language used by the testator to express himself in his will may, by the operation of lay, defeat his real intention:
“returning to the special category of home made wills, I wonder how many people in the Bahamas, lay people that is, have the slightest idea that a gift to several children or people without more does not confer upon each or her issue or devisees? But that is the law and if such are the words by which the testators express themselves the devisees take as joint tenants with the result that the survivor takes all. Yet I suspect that the great majority of Bahamians, and indeed lay persons within the wider Caribbean, would immediately say “but that is not what I intended. If I intended only one to enjoy the property, I would have said so. If I did not want some of my children to have part of the property separately and equally I would not have included his name.”
In that case the Court of Appeal, with a notable dissent by Ibrahim, J.A., resolved the issue of the ambiguity in the words used in the will to describe the interest in the property, by reliance on an equitable doctrine that leans in favour of construing a tenancy in common unless there is the clearest intention showing that the principle of survivorship applies. Equally however there is the ancient and well known doctrine that “the first word prevails in a deed but the last in a will” (Williams on Wills 9th ed. pars 52.7). In this case therefore, do the clear words “joint tenants” negative the words “share and share alike”? To answer that question I turn to the well known principles of construction of wills to resolve this ambiguity in the said will of the late Henry Smith.
A testator is entitled to dispose of his property as he sees fit. Shadwell VC in Vaughan v. Marquis of Headfort (1880) 10 Sim 641, underscores that freedom of the testator to dispose of his property:
“By the laws of this country, every testator in disposing of his property is at liberty to adopt his own nonsense.” (See also HCA 1685 of 1995 Pond v. Pond)
What did the testator intend when he devised all his real and personal property to the beneficiaries “share and share alike as joint tenants”? There is no other devise in the will and no other clause which can be of any assistance whatsoever in ascertaining the intention of the testator in this devise. The Court must sit in the “armchair of the testator” and try to determine as best as it could what was his intention from the words used to express that intention. Would he have said “certainly each of my children take a several and separate share” or would he have said “but of course all take as joint tenants, that is what I have said?”
To answer this question, the Court has to ask itself what do the written words used by the testator mean in the particular case. In construing the testator's intention, the Court must as a first rule give effect to the words as declared by the testator. According to Viscount Simon in Perrin v. Morgan (Jarman on Wills 8th ed. Vol. 3 p. 2065) the fundamental rule in construing the language of a Will is to put on the words used the meaning which, having regard to the terms of the Will, the testator intended. Equally the Court must resolve any ambiguity by relying on well established principles of construction of wills. Although there are certain rules of construction which are common to: both deeds and wills a certain degree of indulgence is allowed in wills. This indulgence is granted to testators who are regarded as “inopus cosilii” resulting quite unfortunately in the will being the subject of the “caprices of language” ([1943] A.C. 399).
The Court must therefore rely upon general principles of construction as a compass to navigate through the maze of words used by the testators to ascertain the true meaning of the words used. Some of the general principles of construction on the interpretation of wills (See Halsbury Laws of England 4th ed. reissue Volume 50, Williams on Wills 9th Ed. Vol. Ch. 49, Jarman on Wills 8th ed. Ch. 57.) which are useful in this case are as follows:
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a. The Court must give effect to the intention of the testator as expressed in the words used in the will.
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b. The intention is to be gleaned from the entire will.
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c. All the parts of a will are to be construed in relation to each other and so as far possible to form one whole but where several parts are absolutely irreconcilable the latter must prevail.
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d. Where a testator uses technical words he is presumed to employ them in their legal sense unless the context clearly indicates the contrary.
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e. The words in general are to be taken in their ordinary grammatical sense unless a clear intention to use them in another can be construed and they together can be construed, to receive a construction which will give to every expression some effect rather than one that will render any of the expressions inoperative.
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f. Settled rules of construction should not be departed from upon a finding of minute differences in language. It can be departed from only where the testator has expressed a different intention by the words which he has used.
Where property is given to several persons concurrently, two questions arise: (1) whether those persons take as joint tenants or tenants in common, and (2) in the latter case in what shares do they take. An answer to these questions will depend on the context of the entire will. It is accepted that when a gift is made to two or more persons the use of the words “share and share alike” and other similar words of severance create...
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