Davis v Davis

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis. C. J.,Gordon
• Judgment Date: 17 October 1969
• Neutral Citation: AG 1969 CA 9
• Docket Number: Civil Appeal No. 5 of 1968
• Date: 17 October 1969

Court of Appeal

Lewis, C.J., Gordon, J and Bernard (Acting), J.

Civil Appeal No. 5 of 1968

Davis

and

Davis

Administration of estates - Executor — Rights of Executor

Practice and procedure - Administration of Estates — Order for account.

Evidence - Corroboration — Family assets.

Family law - Matrimonial property — Family assets — Resulting trusts — Married Women's Property Act, Cap. 252, s.19

Will - Partial Intestacy — Will Act, Cap. 57, s.24

Facts: The beneficiary disposed of the assets of an estate before the executor gave his assent. The court discussed the rights of an executor to possession of property for benefit of estate

Facts: Respondent/defendant in court sought order for account against appellant/plaintiff as executor of estate of deceased husband of respondent. The trial judge refused the order on the ground that the correct procedure was not followed. There was an attempt by the respondent to circumvent the order in court below by bringing proceedings by way of a counterclaim.

Facts: Evidence revealed that the family assets were acquired through the joint efforts of the respondent's wife and the deceased husband. A disputed developed between the appellant (the Executor for the deceased husband's estate) and the respondent. The issue for determination by the court was whether the trial judge had erred in not referring to the fact that the respondent's evidence was not corroborated where a claim is made on the estate of the deceased person, the fact that death prevents the court from hearing from one of the parties requires that the court exercise caution. However, the court will not reject a claim in the absence of corroboration if it is satisfied with the truthfulness of the claimant's evidence. The trial judge accepted the testimony of the respondent on how the family assets were acquired. Appeal dismissed.

Facts: In this case the issues to be determined were whether a husband's death would affect the wife's beneficial interest in property and whether an office building could be classified as a family asset. Evidence revealed that the deceased husband and the respondent wife purchase property at “Nevis Street” as their matrimonial home. Later they jointly established an office building on the property. With the death of the husband a dispute developed between the appellant (the deceased's executor) and the respondent's wife.

Facts: Evidence revealed that the deceased bequeathed his car to his son. Before his death he sold it and acquired another which the respondent's wife sought to claim

Held: Beneficiary would be ordered to pay over proceeds of sale of car to executor.

Held: Failure by the respondent to follow these rules set out in s.27, Supreme Court Act, (Cap. 81) Revised Laws of Antigua was blatant disregard for rules of procedure. Cross appeal and appeal dismissed.

Held: The respondent's beneficial interest arose at the time when the property was purchased and when the improvements were made and therefore the respondent's interest would not be affected by the husband's death. Further, the term family assets were not limited to the matrimonial home and furniture but was wide enough to embrace any property intended to be a continuing provision for the spouses. The office building would be part of the family assets and the respondent would in this case enjoy a beneficial interest. Appeal dismissed.

Held:The disposal of the car was a contrary intention negating the earlier bequest, so that the car which he possessed at his death did not pass to his son. The car amounted to partial intestacy and the appellant (as executor) was entitled to recover its value since as the deceased's personal representative he was entitled to the use of the value of the car for purposes of administering the estate, and in the absence of the deceased's consent the respondent was not entitled to withhold possession.

1 Lewis. C. J. This case concerns the ownership and possession of a property at the corner of Nevis and Cross Streets in the City of St. John's purchased by spouses and improved by them with their joint funds, end of a motor-car which belonged to the husband. Cecil Davis died in November 1962 leaving a will by which he disposed of part only of his property. The plaintiff/appellant is his proving executor and the defendant/respondent is his widow,

2 The circumstances in which the property eras acquired are set out in the judgment of Gordon, J.A., which I have had the advantage of reading in advance, so I shall not refer to them in detail, particularly as the reasonableness of the 1 earned judge's findings are no longer challenged in this appeal. Suffice it to say that the learned judge found that both spouses contributed substantially to the purchase of the property. When it was bought, in 1951, there was only one house on the land. This house became the matrimonial home and there the husband died. Subsequently, in 1962, they built on the land by their joint efforts another house, referred to as the office building, the upper floor of which was being used by the husband at the time of his death.

3 There were no children of the marriage, but the husband had a son, and to him he bequeathed the property and “my car” by his will dated 5th January, 1953. The respondent claimed a share in the property and refused to give up possession of the matrimonial home. She also claimed that as the car left by the husband was not the same one that he owned at the date of his hill it passed to her in the partial intestacy. She sold the car and declined to hand over the price, $900, to the appellant.

4 The learned judge, basing his judgment on Rimmer v. Rimmer [1952] 2 All E.R. 863, held that the property (including the office building) belonged to the spouses in equal shares. He refused to order the respondent to give up possession. He held that the car passed under the will and ordered her to pay over the sum of $900 to the appellant.

5 By her Defence and Counterclaim the respondent challenged the validity of the will and asked for revocation of the probate and an account of the appellant's dealings with the Estate. The appellant in his Reply asked that the paragraphs and prayer relating to the validity of the will be struck out as irrelevant and vexatious. At the trial this application was argued in limine. The submission was that the validity of the will could not be challenged by counterclaim. The judge reserved his decision on it and went on to hear the case on the merits. Subsequently, he incorporated his ruling in his written final judgment and ordered that the relevant paragraphs be struck out. Nevertheless, he considered the respondent's evidence, in so far as it related to the validity of the will the appellant had led none — declared it insufficient to enable him to pronounce against validity and refused to make the orders prayed for by the respondent.

6 At the hearing of this appeal learned counsel for the respondent abandoned so much of the cross-notice as sought the reversal of the order striking out the relevant paragraphs, but asked this Court to set aside the judgment in so far as it purports to be an adjudication on the merits of the validity of the will.

7 It is unfortunate that the learned judge dealt with the application to strike out in the way that he did. The appellant's claim as Executor rested upon the validity of the challenged will? and probate. It was desirable that a decision should be given on the sufficiency of the pleading at the trial in order that the parties might know precisely what where the issues as to which evidence should be led, and upon whom the onus of proof lay. A decision striking out this portion of the pleading would result in a dismissal of the part of the counterclaim based upon it, and the question of the validity of the will would no longer be before the judge for adjudication, On a decision sustaining the pleading, the onus of proving the due execution of the will would be upon the executor. The decision, whichever way it went, would be an interlocutory order appealable with leave.

8 The learned judge, by inserting his decision on this important preliminary point in his final judgement, lost sight of its true effect and fell into the error of purporting to adjudicate upon an issue which was no longer before him. In my opinions in so far as his order purports to be an adjudication upon the merits of that issue it cannot stand.

9 I turn now to the appellant's grounds of appeal. Learned counsel submitted, first, that the principle equality applied in Rimmer v. Rimmer [1952] 2 All E.R. 863 and other recent cases was a rule developed by the judges in applications under section 17 of the Married Women's Property Act 1882 (Antigua, Cap. 352 section 19) and could only be applied to disputes under that section and between living spouses. He sought to distinguish Jones v. Maynard [1951] 1 All E.R. 802, a decision in a suit in Chancery between divorced spouses in which the principle was applied, on the ground that that case related to property purchased out of a common banking account operated by the spouses during their marriage. He contended that a dispute between the personal representative of the deceased and the survivor should be treated as a dispute between strangers, and its determination ought to be governed by the same strict considerations both of law and equity as were applied to strangers.

10 In my opinion, the authorities cited by learned counsel do not support this submission. It is unfortunate that at the time of the hearing the full report of Pettitt v. Pettitt [1969] 2 W.L.R 966 was not available, and counsel was able to refer only to a report in The Times.

11 The judgments in that case make it quite clear that section 17 of the Married Women's Property Act 188 is only procedural, and that the law applicable to disputes relating to property acquired during marriage is the same...