Dammer v Wallace et Al

• Jurisdiction: Anguilla
• Judge: Liverpool, J.A.
• Judgment Date: 21 June 1993
• Neutral Citation: AI 1993 CA 2
• Docket Number: Civil Appeal No. 1 of 1991
• Court: Court of Appeal (Anguilla)
• Date: 21 June 1993

Court of Appeal

Floissac, C.J. Byron, J.A. Liverpool, J.A.

Civil Appeal No. 1 of 1991

Dammer

and

Wallace et al

Appearances:

Mr. J.S. Archibald, Q.C. and Mrs. Myrna Walwyn for the appellant.

Dr. Henry Browne and Mr. John Benjamin for the second respondent.

Real property - Interest in land — Appellant sold her interest in land to the second respondent — Whether the appellant had an interest which she could properly have sold to the second respondent — A legatee, devisee, or other person who obtains an interest under a will or intestacy, once entitled to the interest under the will or intestacy may sell it to a third party after the estate has been administered — The appellant did not acquire any right or interest in any property — Real Property Representative Act (Chapter 277) — The real property of the deceased devolved on his personal representatives — Appellant'smother became personal representative of the deceased'sestate — The appellant'smother held property on trust for those beneficially entitled — The deceased only had a right of dower which died with her — No benefit acquired to her children in her will.

Contract - Initial impossibility — Appellant acquired no interest in land and could no have sold anything neither to the appellant nor to the second respondent neither of whom knew — Promise incapable of performance in fact or in law at the time when it was made — Contract void.

Contract - Rescission — The misapprehension was fundamental and the party seeking to set aside the contract was not at fault — Order that the contract be rescinded and the purchase price returned to the second respondent — Appeal allowed.

Liverpool, J.A.

1 Thomas Alexander Webster (the deceased) died in Anguilla on 23 September, 1931, intestate. He was survived by his wife Zellie Augusta Webster (the testator) and ten children, two of whom were the appellant and John Augustus Webster. The deceased owned large acreages of lands in Anguilla of which an area measuring a size of 135.75 acres recorded on the Land Register of Anguilla formed part.

2 At the time of the death of the deceased the Real Representative Act (Chapter 277) was in force in Anguilla and by its terms the real property of the deceased would have devolved on his personal representatives. Letters of Administration of the estate of the deceased were granted on 10 February, 1932 to the testator.

3 The Intestates Estates Act No. 4 of 1945 came into force in Anguilla on 11 December, 1945. It followed the provisions of the Administration of Estates Act of the United Kingdom (1925) by abolishing the concepts of heirship and dower. Under the provisions of the law which were in force at the date of death of the deceased, therefore, his real property after administration would have belonged to his heir subject to his widow'sright to dower (which was a life interest in one-third of the deceased'sreal property). So that when the testator obtained letter of administration to the estate of the deceased in 1932, she held the estate in her capacity as personal representative of the deceased to give effect to those interests.

4 It would appear that the testator who died in 1966 took no steps to administer the estate during her lifetime. But by the provisions of her will dated 24 September, 1956 she purported to make several devises of the property in respect of which her husband had died intestate, to her children and others. She died on 21 September, 1966 and probate of her will was granted on 15 July, 1975 to Peter Adams who had been named sole executor thereunder.

5 Meanwhile on 6 June, 1972 the (plaintiff) appellant had entered into an agreement with her brother John Augustus Webster for the sale to him of her “interest and share” in the will of her mother. The entire agreement reads this:

“I Geneva Ottawa Dammer of 5407 Park Avenue, West New York, New Jersey United States of America, hereby acknowledge receipt of the sum of $1,000.00 (one thousand dollars) United States Currency from JOHN AUGUSTUS WEBSTER of Mount Fortune, East End, in the Island of Anguilla, for all my interest and share in the Will of ZELLIE AUGUSTA WEBSTER (deceased). I hereby transfer the said interest and share to the said JOHN AUGUSTUS WEBSTER this 6th day of June in the year of Our Lord One Thousand Nine Hundred and Seventy-Two.

Sgd. Geneva Ottawa Dammer

WITNESS:

Sgd. Lucy G. McGrath

LUCY G. McGRATH

Sworn to and Subscribed before me

this 6th day of June, 1972.

Sgd. Lucy G. McGrath

LUCY G. McGRATH

Notary Public of New Jersey

My Commission Expires Oct 25, 1973”

6 The first (defendants) respondents were granted letters of administration de bonis non to the estate of the deceased on 18 May, 1983. They sold that area of land forming part of the estate of the deceased consisting of 135.75 acres to Rosano Spadaro and Coral Cove Limited, who by 1988 had duly paid for those lands and the sum of US$1,561,125.00 became available to the first respondents who technically should have held this sum on behalf of the persons entitled in accordance with the rules of intestacy which prevailed at the time of the death of the deceased.

7 The appellant alleged, and this was admitted by the second (defendant) respondent, that the purchase money was divided into ten equal shares among the children of the deceased and that all the children except the appellant have received from the first respondents one-tenth share of the proceeds of sale. The appellant therefore instituted these proceedings against the first respondents as Administrators of the Estate of the deceased in order to recover the sum of US$156,112.50 which she claims represents her one-tenth share which has been withheld from her.

8 By her writ issued on 2 June, 1989 (and amended on 6 April, 1990), the appellant stated that the first respondents sold 135.75 acres of land which hitherto formed part of the estate of the deceased to Rosano Spadaro and Coral Cove Limited and had received the purchase price of US $1,561,125.00. That the first respondents had distributed 9/10 ths. of the proceeds of sale among nine of the beneficiaries of the estate of the deceased but were withholding the one tenth share which belonged to her and were refusing to pay over the same to her. She therefore claimed a declaration that she was entitled to that 1/10th share the sum of US$156.112.50 represented by it and an order that the first respondents should pay over the sum to her. The appellant also claimed damages and costs.

9 John Augustus Webster the appellant'sbrother, (the purchaser) who had entered into the agreement of 6 June 1972 to purchase the appellant'sinterest and share in the will of their mother, died on 21 September, 1989, having appointed the second respondent to be his executor. On 25 October, 1989 the second respondent applied to the High Court for an order to jointed as an intervener to the suit filed against the first respondents. The grounds of the application were that the appellant had, by agreement dated 6 June, 1972, and in consideration for the sum of US$1,000.00 sold to the purchaser a portion of land which devolved to the appellant on the intestacy of the deceased; that at the time of making the...