Gumbs v Rogers

• Jurisdiction: Anguilla
• Judge: Saunders, J.
• Judgment Date: 17 October 1996
• Neutral Citation: AI 1996 HC 2
• Docket Number: 88 of 1995
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 17 October 1996

High Court

Saunders, J.

88 of 1995

Gumbs

and

Rogers

Appearances:

Ms. Joyce Kentish for the plaintiff

Mr. Saul Froomkin QC and Ms. Yvette Wallace for the defendant

Will - Interpretation — Distinction between “my” lands and other land — Testator's lands not contiguous — Finding that gift in devise number eight which was paid to be bounded on three sides by “my” land was land delineated in a sketch.

Saunders, J.

1 George Henworth Gumbs, whom I shall call “the Testator”. of Little Dicks, Anguilla died on the 21st day of December, 1973. He owned and/or held several different parcels of land. Indeed, land was very precious to him. And so, getting on in age, in August of 1973 he decided to make a will. Unfortunately, there were few lawyers in Anguilla at the time. To make matters worse, Mr. Gumbs was unable to read or write.

2 The testator was nonetheless an intelligent man. He did what was prudent in the circumstances. Thomas Theophilus Rogers was regarded as a “bush lawyer” in Anguilla at the time. He was a friend of Mr. Gumbs. The testator had Thomas Theophilus Rogers write down his will for him. He then made his mark at the foot of the will and this document was witnessed by James Rogers and Thomas Petty.

3 This case concerns the interpretation of that will. In particular, the proper construction to be placed upon two clauses of the will, namely the fourth devise, which was a gift to the testator's three children, and the eighth devise which was a gift to the testator's granddaughter, Katherine. She is the plaintiff in this suit. The defendant is the executor named in the will.

4 It is now necessary to set out in full the complete text of Mr. Gumbs' Last will as recorded on paper by his chosen scribe. This is how the will read:

Little Dicks

Anguilla

August 4th 1973

In the name of God Amen I George Henwood Gumbs Labourer Native Born of the above address and at present Residing in the said address and is of sound mind do hereby Revoke all wills and testament I has ever made before this date. I request that after my funeral expenses and all just debts is paid and satisfied I bequeath my dwellinghouse with the land around it into two equal shares to my two daughters Elsie Gumbs and Edna Armantrading The Land on which my son, Bernel house is I request that to be own by him

The small lot of land south of Bernel own I request that to be own by my grand son Luther Gumbs.

All my bush land which is into two division which is also situated in Little Dicks I request for these two pieces of land I request for them to be divide into three equal shares between my three children Elsie Gumbs Edna Armantrading and Bernel Gumbs. I request that one half acre of Bottom land situated in Little Dicks up in the Upper Bottom to be own my grand daughter Kathrine Gumbs I also request that my daughter Elsie own a half acre which is adjoining that of Kathrine Gumbs own I also request that my son Bernel Gumbs own one quarter acre of land which is also adjoining the acre which is for Elsie and Kathrine in the said Bottom I also request a piece of bush land situated by my land to be own by my grand daughter Kathrine Gumbs the said piece of land is situated between my land Bounding East with my land and West with my brother Godwin land on the North with my land and on the South with my land.

I request that my three children Elsie Edna and Bernel bear my funeral expenses equally and that my body be decently buried I appoint James T. Rogers of Stony Ground to be my Legal executor.

Sign by the Testator) his in the presence of us) George Henwood X Gumbs both at the same time) mark who also in his) presence and in that) of each other have) subscribed our names) as witnesses)

Sgd. James Rogers

Sgd. Thomas M. Petty

5 On Katherine Gumbs interpretation of this will, the eighth devise (i.e. the one which begins “I also request a piece of bush land…”) is a gift to her of lands which would amount to over twenty (20) acres. The executor does not agree. He says that on a proper interpretation of the will, Katherine is only entitled, under that eighth devise, to approximately four (4) acres of. land which the testator used to work for Katherine's father, Leon Gumbs.

6 The parties got together in an attempt to resolve this substantial difference of opinion. They made little headway. They could not agree. Katherine Gumbs therefore filed this suit against the executor of the will.

7 Each of the parties gave evidence and called witnesses to support their testimonies. The case turns mainly on the factual evidence presented.

8 Some observations on the will are in order at this stage. The reasons for these observations will become apparent in due course.

9 First of all, both parties to this dispute agree that some of the lands that were devised in the will were not beneficially owned by Mr. Gumbs. He held these lands on trust. Throughout the evidence presented there was conflicting testimony as to exactly what was actually beneficially owned by him and what was merely held by him as a trustee. It is common ground however that some of the devises in the will relate to lands of which the testator may only have been a trustee.

10 A reading of the will itself suggests this to be the case. Mr. Gumbs appears at times to make a distinction between “my” land and other land. This is particularly the case in the crucial eighth devise, one of the devises to Katherine Gumbs. The land devised there is said to be bounded on three sides by “my” land. This certainly raises a presumption that the testator himself was aware that he was indeed a trustee of certain lands.

11 The second observation relates to the types of land devised. The will speaks of Bush land and Bottom land. This requires some explanation. The undisputed evidence is that Bush land referred to lands which were rocky and unsuitable for cultivation. Only wild shrubs grew on these lands. Bottom land, on the other hand, referred to lands with a deep, fertile soil. Bottom land was valuable land at the time because it was capable of being cultivated.

12 Thirdly, the testator's lands, or rather the lands which he purported to devise by his will, were not all contiguous. They were in different locations. Some of his lands fell squarely in Little Dicks. Other lands are registered on the Anguilla cadastral as being located in Shoal Bay. Little Dicks and Shoal Bay are two different villages in Anguilla. The evidence which I accept is that these two villages lie side by side. They are separated only by a small incline called Nuncie Hill.

13 In the will, Mr. Gumbs defines some of the land being devised as situated within the village of Little Dicks. In other parts of the will he is silent as to the precise location of the particular lands being there devised.

14 There was a considerable amount of evidence given at the trial as to the precise location of the lands referred to in the eighth devise. Much of the case was unnecessarily taken up with this issue. The evidence suggests that objectively, the lands referred to in the eighth devise are, properly speaking, in the village of Shoal Bay. Only towards the end of the case was that rather obvious fact conceded by Counsel on behalf of the executor.

15 The evidence also discloses, and I so find, the following. In the first three devises of the will the testator was purporting to give away lands which all form part of what I would describe as Lot 27. In the fifth, sixth and seventh devises the testator was disposing of lands which I would describe as comprising Lot 19. And finally (for the purpose of understanding the eighth devise) Godwin Gumbs, one of the testator's brothers, did indeed have a beneficial interest in a parcel of land immediately to the west of lands owned or at any rate held by the testator. Evidence was also led that Lot 19 represented Bottom land and that Mary Gumbs, the testator's mother, was the post cadastral registered owner of Lots 27 and 30. The latter Lot was another parcel which was devised by Mr. Gumbs in his will.

16 There are other matters which went a considerable way towards making the factual issues in this case even more complicated than they already were. Evidence was given that in Anguilla, land which has not been surveyed may be referred to as comprising so many acres “more or less”. More often than not this land would turn out to be “more” rather than “less”. When surveyed, such lands may well be found to be more than several times over the stated acreage.

17 A cadastral survey was done of the entire island in or about 1975. Thereafter a new system of land registration was implemented. This has posed peculiar difficulties in relation to land ownership. In many instances, lands occupied by one family member as a trustee were recorded, for the purposes of post cadastral registration, as property beneficially owned by that trustee or by his or her heirs. Such has apparently been the case here with lands which were held by Mr. Gumbs.

18 Then there is the difficulty regarding the size of plots of land. In some instances, there may be very little correlation between the size of the land on a pre-cadastral document evincing land ownership and the size as stated in the cadastral survey.

19 With the above observations in mind, I shall now proceed to examine the respective contentions and evidence led by the parties.

20 The plaintiff's father was the son of the testator. The testator survived this son, Leon. As a child, the plaintiff lived with the testator up to the age of seven years. Then she lived with her mother next door to the testator. She visited her grandfather every day helping him out with the cows and looking after her grandmother, the testator's wife.

21 The plaintiff's case is that at the time of his death, her grandfather had five (5) different pieces of land. Four pieces in Little Dicks and one piece in Shoal Bay. The...