Daisy Edwards (Executrix of the Estate of Martha Thomas Deceased) Plaintiff/Appellant v Theodore Athill Defendant/Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: CECIL LEWIS, C.J. (Ag.),ST. BERNARD, J.A.,GLASGOW, J.A. (Ag.)
• Judgment Date: 10 November 1972
• Judgment citation (vLex): [1972] ECSC J1110-1
• Docket Number: Civil Appeal No. 3 of 1972
• Date: 10 November 1972
• Court: Court of Appeal (Antigua and Barbuda)

[1972] ECSC J1110-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Glasgow (Ag.)

Civil Appeal No. 3 of 1972

Between:

Daisy Edwards (Executrix of the Estate of Martha Thomas Deceased)

Plaintiff/Appellant

and

Theodore Athill

Defendant/Respondent

S.T. Christian for Plaintiff/ Appellant

Louis H. Lockhart for Defendant/Respondent

CECIL LEWIS, C.J. (Ag.)

1 The plaintiff/appellant instituted a suit in the High Court against the respondent in which he claimed possession of a piece or parcel of land at Liberta Village and a two-storied dwelling house situated thereon and also a declaration that she was entitled to the said land and premises. She sued in her capacity as executrix of the estate of Martha Thomas deceased. In her statement of claim she alleged that Martha Thomas (who is hereinafter referred to as "the testatrix") purchased this land on the 19th January, 1923 and was in undisturbed possession thereof up to the date of her death on the 28th January, 1969. The said Martha Thomas laft a will in which she appointed the plaintiff/appellant her executrix. Probate of the will was granted to the plaintiff/appellant on the 10th July, 1969. The said house and land were devised to the plaintiff/appellant absolutely. On the same date of Martha Thomas' death the respondent wrongfully went into possession of and refused to leave the premises.

2 The defence is that the defendant/respondent is personally in possession of the premises, that on the date of the death of the respondent's father, Joseph Athill, on the 14th July, 1964, he, Joseph Athill, was in possession of the said premises and had been in possession thereof since the 16th September, 1919, that his son the respondent, obtained Letters of Administration of the estate of his father and included in the estate of his father which he administered was the said property; that as administrator the respondent conveyed the said property to himself and that the Deed of Conveyance is now registered. In paragraph 5 of the defence, it is also stated that upon the death of the said Joseph Athill in 1964, he, the defendant/respondent went into possession of the said premises. In her reply the plaintiff/appellant joined issue with the respondent on his defence and said as to paragraphs 2, 4 and 5 of the defence that she repeated paragraph 3 of her statement of claim, asked the court to say that the indenture by which the respondent conveyed the land to himself is null and void and has sought a declaration to this effect.

3 Now the evidence encloses there was a purchase of this land in 1923. This evidence was given by Matilda Thomas, the sister of Martha Thomas the testatrix. Her evidence is that her sister Martha who was younger than she was, went away to the U.S.A. and that she owned no property at the time. The property in dispute was in Liberta and was originally owned by an old lady called Mrs. Cable; that Sonny Athill, the respondent's father, bought it; that her sister purchased it from him in 1923 while she was in America, and that when it was purchased she, the witness, Matilda Thomas, lived with her mother on the premises; and that her sister sent the money to purchase the property.

4 Before action was brought, there was some correspondence between the solicitors for the parties about this property and in a letter, Exhibit 2, written by the then solicitor for the respondent to the solicitor for the plaintiff/appellant it was stated that the respondent had instructed the solicitor to inform the appellant that the respondent had been appointed by the court to administer his father's estate "which estate includes the house and land at Liberta which you now occupy." This letter was written to Martha Thomas and in it she was requested to vacate the premises not later than the 31st August, 1968. The reply to that letter by the appellant's solicitor was to t he effect that Martha Thomas claimed that she owned the property since 1923 and that she has a receipt dated 18th January, 1923 to prove she had purchased it from one Joseph Nathaniel Attley who was presumed to be the father of the respondent. This indeed, has not been denied. The letter stated also that on the receipt are the signatures of three witnesses, two of whom are dead, and that Miss Thomas has been residing on the property since 1923 without disturbance; that the solicitor for Miss Martha Thomas has documents to show that the house was hers beyond doubt, and that she was therefore disputing the respondent's claim to the property.

5 I now return to the evidence of Matilda Thomas....