Gumbs v Rogers

• Jurisdiction: Anguilla
• Judge: Matthew J. A.
• Judgment Date: 02 June 1998
• Neutral Citation: AI 1998 CA 2
• Docket Number: No. 1 of 1997
• Court: Court of Appeal (Anguilla)
• Date: 02 June 1998

Court of Appeal

Byron, C.J. (Ag.) Singh, J.A.Matthew, J.A. (Ag.)

No. 1 of 1997

Gumbs

and

Rogers

Appearances:

Miss. J. Kentish for the appellant

Mr. S. Froomkin Q.C., Mr. K. Lake and Miss Y. Wallace for the Respondent

Will - Devise of land B Whether or not the respondent had correctly and validly devised land to the appellant — Court found that claim of appellants to the devise of land was valid and effective — Appeal dismissed.

1 Matthew J. A. [AG.]: The testator, George HenworthGumbs was illiterate. With the assistance of a “bush” lawyer, Thomas Theophilus Rogers, he made a Will on August 4, 1973 consisting of eight devises. This case concerns the interpretationof two devises of the Will, namely the fourth devise which was a gift of his bush land to the testator'sthree children and the eighth devise which was a specific gift to the testator'sgranddaughter, Katherine Gumbs, the appellant, of a piece of bush land. The will is not very long and it is convenient to set it out in full. This is how the will reads:

“Little Dicks

Anguilla

August 4th 1973

In the name of God Amen George HenwoodGumbs 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 BernelGumbs. I request that one half acre of Bottom land situated in Little Dicks up in the Upper Bottom to be own my grand daughter KathrineGumbs I also request that my daughter Elsie own a half acre which is adjoining that of Katherine Gumbs own I also request that my son BernelGumbs 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 KathrineGumbs 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”

2 The testator died on December 21 1973. On September 20, 1988 the appellant through her solicitor wrote to the respondent who is the executor of the Will asking him to take the necessary steps to administer the estate and vest her entitlement to her. Later the appellant got other solicitors to act for her. In a letter written to the executor by the new solicitors they recognized that the executor had engaged Mr. Cecil Niles, land surveyor/planner, to partition the estate and they were objecting to the portion of land identified by Mr. Niles as the appellant'sshare. The solicitors suggested a meeting to resolve the issues amicably.

3 The evidence before the learned trial judge revealed that the parties got together in an attempt to resolve their differences but this failed. The appellant then filed a suit against the executor.

4 According to Cecil Niles’ sketch the appellant would be entitled to approximately 4 acres of land coming from the eighth devise. The appellant'scase according to her pleading is that the total area of land contained in Registration Section North Block 59017 B Parcel 1 would be approximately 60 acres. She says that on a proper construction of the eighth devise the appellant was the only named beneficiary to receive an interest in the land contained in parcel 1, and so the Decedent died intestate as to the remainder of the lands contained in parcel 1 after the specific devise to the appellant is taken.

5 The Appellant disagrees with the calculation of Cecil Niles and states that on a proper construction of the second specific devise [i.e. the eighth devise] the appellant is entitled to approximately 20 acres of land. It follows mathematically that the testator would not have disposed of some 40 acres. But that is not all. The appellant by paragraph 9 of her claim alleges that upon the intestacy she becomes entitled to a one-fourth share of the remainder of the lands.

6 The case for the respondent denies that the appellant is the only named beneficiary to receive interest in parcel 1 and he alleges that the testator'sthree children were specifically devised the remainder of land in parcel 1. As regards the appellant'sclaim to the second specific devise the respondent first alleges that the gift fails for uncertainty and in the alternative the second specific devise was an attempt to bequeath to the appellant lands in which her father had a beneficial interest prior to his death.

7 The learned trial judge made some useful observations on the Will which it is necessary to reiterate for a better understanding of the issues. I shall refer to three of them very briefly. The first is that some of the lands that were devised in the Will were not beneficially owned by the testator and that he held these lands on trust. After hearing counsel on either side it seems to me that I can safely say that the lands in the first three devises and the lands in the fifth, sixth and seventh devises were not beneficially owned by the testator.

8 The land in the first three devises came out of parcel 27 which was registered in the name of Mary Gumbs, the testator'smother and the land in the fifth, sixth and seventh devises came out of parcel 19 which the testator also did not own.

9 The second observation relates to the types of land devised. The Will speaks of bush land and bottom land. The undisputed evidence was that bush land referred to lands which were rocky and unsuitable for cultivation while bottom land referred to the lands with a deep, fertile soil.

10 The last observation is that the testator'slands were not all contiguous. They were in different locations. Some of the land fell squarely in Little Dicks and that is perhaps the case in the first seven devises. The learned judge found and I think it has been agreed by all that the testator had lands in Shoal Bay, and the eighth devise relates to land in Shoal Bay. Little Dicks and Shoal Bay are two different villages in Anguilla in close proximity. The learned trial judge made a finding that the two villages lie side by side and they are separated only by a small incline calledNuncie Hill. In his judgment delivered on December 10, 1996 the learned trial judge after hearing the parties and upon examination of all the evidence found that in the fourth devise the testator intended to give to his three living children all of his bush lands and that the same referred to the lands comprised in lot 1 and block 1.

11 As regards the eighth devise the learned judge found that the only credible interpretation of the gift to the appellant is that she should receive the portion of land which was delineated on a sketch done by Mr. Cecil Niles and which portion of land was thereby shown to be comprised of approximately four acres.

12 The appellant was not satisfied with the judgment and on January 31, 1997 she filed her notice of appeal alleging several grounds of appeal, no less than seven in all.

13 Before I go on to deal with the grounds of appeal I think should advert to a passage of the judgment which throws some light on the different parcel or block numbers with which this case is concerned. The learned trial judge said that the plaintiff'scase was that at the time of his death her grandfather had five different pieces of land; four pieces in Little Dicks and one piece in Shoal Bay. He found that the piece in Shoal Bay is registered as Block 1 of Parcel 59017B and the four pieces in Little Dicks are lots numbers 27, 30, 19 and 1 of parcel 59016B.

14 I am not able to discern the acreage of lot 27 as the land register for this parcel indicates that the acreage has not been determined but when one looks at the first three devises it cannot be imagined that the amount of land involved could be significant. The land register shows parcel 59016B 30 to consist of 12 acres, parcel 59016B 19 to consist of 13 acres; and parcel 59016B 1to consist of 7 2 acres. Evidence was led that lot 19 represented bottom land.

15 I return to the appellant'sgrounds of appeal. The first two grounds can be taken together and they seem to be the main grounds of appeal. In short the first ground is that the learned trial judge misdirected himself when he failed to give effect to the fourth devise as a devise of bush land in lot 30 and lot 1 and instead found that the said fourth devise was intended to be a disposal of land comprised in lot 1 and block 1 and in the process erred in law when he applied the rule of construction “falsademonstratio non nocet cum de corporeconstat.”

16 The second ground is that the learned judge erred in law when he failed to give effect to every devise in the testator'sWill and to give meaning and effect to all the words contained therein.

17 Learned counsel for the appellant submitted that the learned judge found that the testator made devises of lots 30 and 1, that both were bush land and...