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Land dispute settlement in Carriacou – Part II

The Hon. Mde. Gertel Thom

A land dispute on the sister isle of Carriacou has apparently been settled by the Court of Appeal of the Eastern Caribbean Supreme Court.

The case was brought by Eliza Thompson against another family member Catherine Thompson and stemmed from a decision handed down in the matter by a high court judge.

Eliza Thompson was not satisfied that the judge had ruled against her in the case which involves the estate of one of their parents.

The Court of Appeal Justices who heard the matter were Mario Michel, Mde. Gertel Thom, and Paul Webster while the lawyers involved were Celia Edwards, QC and her daughter, attorney Celine Edwards for the Appellant and Carriacou-born Alban John and Vern Ashby for the Respondent.

As a public service, THE NEW TODAY reproduces in the public interest the judgment from the Justices of the Court of Appeal:-

The decision of the court below
[6] The learned judge identified two issues to be determined by the court – the first was the extent of the share of each of the surviving children of Mrs. Thompson in her estate, and the second was what was to be done with Joseph’s share in the land forming part of the estate of his mother. The judge answered the first question by his order that each of the six children of Mrs. Thompson who survived her was entitled to a one-sixth share (comprising 41,168.17 square feet) of her Carriacou land; and he answered the second question by his order that the appellant is entitled to 10,292.18 square feet, being one quarter acre out of Joseph’s one-sixth share in his mother’s estate.

The appeal
[7] The appellant, being dissatisfied with the decision of the learned judge, appealed against paragraph 2 of the order wherein the learned judge held that the appellant was entitled to 10,292.18 square feet out of Joseph’s one-sixth share in his mother’s estate. The respondent cross-appealed paragraph 2 of the judge’s order contending that the judge erred in holding that the 10,292.18 square feet should come out of Joseph’s share, rather than from the share of his brother, Robert, who was the appellant’s husband and the person through whom she would be entitled to an interest in the land. The respondent also appealed against paragraph 3 of the judge’s order wherein the learned judge held that the parties are to bear their own costs, contending that she, as the successful party, was entitled to her costs to be paid by the appellant.

The appellant’s case
[8] The appellant submits that the clear intention of Joseph in the deed of gift was to convey to her the entire estate of Mrs. Thompson ( containing 5 acres 2 roods and 27.287 poles) which he believed he was entitled to. This, she claimed, was his intention, even though the schedule to the deed described the land as ‘containing by estimation quarter of an acre English Statue Measure’. She contends that at the time Joseph executed the deed, it was thought that Mrs. Thompson’s estate only contained a quarter of an acre, and this was the reason for the incorrect statement of the area of the land.

[9] The appellant concedes that Joseph was not in fact entitled to the entire estate of his mother but, as one of the six children who survived her, he was entitled to a one-sixth share of her estate, which share was therefore transferred to her by the deed of gift.

[10] The appellant relies on the case of St. Vincent Building and Loan Association v Kenneth Browne et al, where Byer J reviewed relevant authorities on the question of what prevails in the divergence between a description of the boundaries of a parcel of land in a deed and a statement of the area of the land in the same deed. The learned judge quoted the following extracts from paragraph 329 of Halsbury’s Laws of England:

“The title deeds of the parties concerned constitute the primary evidence and must be considered first; and the boundaries as indicated in the title deeds prevail if they are clear and unambiguous.”

“… where a deed refers to known physical and natural objects by means of which the boundaries of land conveyed are described, and also contains a statement of area, the former controls the latter in case of discrepancy ….”

Byer J concluded in the case before her, and the appellant asks this Court to likewise conclude in this case, that the description of the land in the deed eclipses the statement in the deed of the area of the land.

[11] The appellant also relies on section 32 of the Conveyancing and Law of Property Actwhich states:

“(1) Every conveyance shall, by virtue of this Act, be effectual to pass all the estate, right, title, interest, claim and demand which the conveying parties respectively have in, to or on, the property conveyed or expressed or intended so to be, or which they respectively have power to convey in, to or on the same.

(2) This section applies only if and so far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

(3) This section applies only to conveyances made after the commencement of this Act.”

[12] The appellant contends that since there was no contrary intention expressed in the deed of gift to her, the only possible effect of the deed was to convey Joseph’s entire entitlement in the land to her, which the learned judge found was one-sixth of the 5+ acres of land left by Mrs. Thompson. The appellant therefore submits that by the time Joseph made the will in 1998, he had already transferred his entire share in the land to her by virtue of the deed of gift and he had no interest left to convey to the respondent.

The respondent’s case
[13] The respondent references paragraph 341 of Halsbury’s Laws of England, where it is stated that:

“The property which devolves upon the personal representative is held by him in right of the deceased and not in his own right. The entire ownership of the property comprised in the estate of a deceased person, both legal and equitable, which remains unadministered is in the deceased’s legal personal representative for the purposes of administration.”

She contends that Joseph at all times held the lands in his representative capacity as administrator and not in his own right. She asserts that the operative part of the recitals in the deed of gift refers to Joseph in his capacity as administrator, and that nowhere in the operative part of the deed was there an expression by which Joseph, in his personal capacity, conveyed the land to the appellant. She submits that the Letters of Administration only placed Joseph in possession of the land for the sole purpose of administering the estate of his mother, Mrs. Thompson.

[14] The respondent also submits that the deed of gift was ambiguous and fraught with erroneous statements, premises and descriptions and should be declared void or, if it is determined that it was effective to convey anything, it only conveyed what the appellant was entitled to inherit through her husband, Robert.

[15] The respondent argues that there is nothing in the deed of gift on the basis of which it can be concluded that Joseph intended that the quarter acre of land which he purported to convey to the appellant should come from his personal share in his mother’s estate, instead of from the share of his brother, Robert. In support of this argument, the respondent pointed out that Joseph’s house was not mentioned in the deed. She contends that the will, on the other hand, specifically devised to her Joseph’s home and the land on which it stood, evidencing a clear intention on Joseph’s part to leave his share in the land to her. She therefore urged this Court to dismiss the appeal and allow the cross-appeal.

Discussion and analysis
[16] Both parties to the appeal have accepted that there were several errors in the deed of gift. It is also accepted that the determination of this appeal turns largely on this Court’s interpretation of the deed of gift executed by Joseph, by which deed he purported to convey the entirety of his mother’s estate to the appellant. This therefore warrants an examination of the relevant provisions of the deed.

[17] The first clause of the deed identifies the parties to the deed. It describes Joseph as both the Administrator and the Grantor and describes the appellant as the Grantee.

[18] The first recital speaks to Mrs. Thompson’s entitlement to the lands described in the schedule and describes her as the deceased.

[19] The second, fifth and sixth recitals read as follows:

Second – “The deceased died on the Eleventh day of September One Thousand Nine hundred and thirty-one at L’Esterre aforesaid intestate leaving her lawful son as the only person entitled to her estate her surviving”.

Fifth – “AND WHEREAS by the death intestate of the Deceased the Grantor hereinabove mentioned became entitled to the estate”.

Sixth – “AND WHEREAS the Grantor is desirous of conveying the said hereditaments to the Grantee to the intent that the whole legal estate and beneficial interest therein shall be vested in the Grantee”.

[20] The operative clause of the deed reads as follows:

“…in pursuance of the premises and of the said desire and in consideration of the natural love and affection for the Grantee the Administrator as Personal Representative hereby CONVEYS and CONFIRMS unto the Grantee ALL THAT the hereditaments set out and described in the Schedule hereto TO HOLD the same UNTO and TO THE USE of the Grantee in fee simple to the intent that the Grantee may henceforth stand seised of the entirely of the said hereditaments free from any resulting trust in favour of the Grantor.”

[21] It clearly appears from the language used in the deed of gift that Joseph was under the impression that he was entitled to the entirety of his mother’s estate. This is clearly evidenced by the second recital quoted above, wherein he identifies himself as ‘the only person entitled to her estate her surviving’. Section 4 of the Intestate Estates Act sets out the manner in which the estate of a person dying intestate shall devolve to his or her heirs. In accordance with this section, the entire estate of Mrs. Thompson could not have passed to Joseph only, when 6 of her children survived her and, although the other 5 (apart from Joseph) were deceased at the time that Joseph executed the deed of gift, each of them left surviving heirs to whom the share of each would devolve.

[22] It also appears that Joseph purported to convey the land to the appellant in his representative capacity, as evidenced by the following words in the operative clause – ‘the Administrator as Personal Representative hereby CONVEYS …’ However, Letters of Administration empower the administrator to administer the estate of the deceased in accordance with the law of intestacy, which in Grenada is contained in the Intestate Estates Act and the Real Estate Devolution Act and which provides for the property of a widow or widower, with children born in wedlock, to pass in equal shares to each of his or her surviving children and, if the children who survive the parent die before the administration of the estate, their shares devolve to their respective heirs.

[23] Counsel for the appellant made a valiant attempt to persuade this Court that it ought to look beyond the clear words of the deed of gift and find that the intention of Joseph was to convey the land to the appellant as a grantor of his share in the estate of his deceased mother. But this argument must fail for reasons which will become apparent.

24] The learned authors of Halsbury’s Laws of England explained the nature of the interest of the personal representative in paragraph 341 of volume 17(2). Although this extract has already been quoted in paragraph 13 above, I repeat it here for context and emphasis:

“The property which devolves upon the personal representative is held by him in right of the deceased and not in his own right. The entire ownership of the property comprised in the estate of a deceased person, both legal and equitable, which remains unadministered is in the deceased’s legal personal representative for the purposes of administration.”

[25] Since Joseph had not administered the estate of his mother, the only capacity in which he was therefore entitled to transfer the property of the estate was in his capacity as administrator of the estate, because there is no evidence of him or anyone else being vested with a share of the estate. Where an estate remains unadministered, no beneficiary has an interest in the estate’s property, even in property which was specifically devised by will.8 In order to have been able to transfer the property from himself as grantor to the appellant as grantee, Joseph would have had to first execute a vesting deed transferring the land or some part of it to himself. Until this is done, he could only transfer an interest in the land as administrator in accordance with the provisions of the Intestate Estates Act and the Real Estate Devolution Act. In any event, even if the Court was minded to go along with the appellant’s argument that when one reads the recitals in the deed of gift it is clear that Joseph was not conveying the land to the appellant as administrator, the recitals in the deed are nevertheless subordinate to the operative clause of the deed, which clause is pellucid that Joseph purported to convey the land to the appellant in his representative capacity as the administrator of the estate of his mother.

TO BE CONTINUED

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