Katherine Gumbs Appellant v James T. Rogers [as Personal Representative in the Estate of George Henworth Gumbs, Deceased] Respondent [ECSC]

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: MATTHEW J. A. [AG.],Justice of Appeal [Ag.],Chief Justice [Ag.],SATROHAN SINGH,Justice of Appeal
• Judgment Date: 02 June 1998
• Judgment citation (vLex): [1998] ECSC J0602-2
• Docket Number: CIVIL APPEAL NO. 1 OF 1997
• Date: 02 June 1998

[1998] ECSC J0602-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C. M. Dennis Byron Chief Justice [Ag.]

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert N. J. Matthew Justice of Appeal [Ag.]

CIVIL APPEAL NO. 1 OF 1997

Between:

Katherine Gumbs

Appellant

and

James T. Rogers

[As Personal Representative in the Estate of George Henworth Gumbs, Deceased]

Respondent

Appearances:

Miss. J. Kentish for the Appellant

Mr. S. Froomkin Q.C., Mr. K. Lake and

Miss Y. Wallace for the Respondent

Law of Succession — Interpretation of the will of an illiterate testator — Construction of certain devises of the will — According to one construction deceased will be held to have died intestate as to a portion of certain devised land, after a specific devise to appellant — Whether the devise is void for uncertainty — Question of whether some of the lands devised in the will were in fact beneficially owned by testator or whether he only held on trust — Application of the rule of construction "falsa demonstratio non nocet cum de corpore constat" — Whether extrinsic evidence should be admitted to explain the intent of the testator —Hardwicke v Hardwicke [1873] LR 16 E.Q. 168; Travers v Blundell [1877] 6 Ch 436 referred to — Presumption against intestacy —Re Harrison, Turner v Hellard [1885] 30 Ch 373 applied — Application of the maxim "id certum est quod certum reddi potest". Appeal dismissed.

MATTHEW J. A. [AG.]

1 The testator, George Henworth Gumbs 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 interpretation of two devises of the Will, namely the fourth devise which was a gift of his bush land to the testator's three children and the eighth devise which was a specific gift to the testator's granddaughter, 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 4^th 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 Katherine 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.

2 Sign by the Testator his In the presence of us 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"

his

George Henwood X Gumbs

mark

3 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 theestate and they were objecting to the portion of land identified by Mr. Niles as the Appellant's share. The solicitors suggested a meeting to resolve the issues amicably.

4 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.

5 According to Cecil Niles' sketch the Appellant would be entitled to approximately 4 acres of land coming from the eighth devise. The Appellant's case 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.

6 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.

7 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's three children were specifically devised the remainder of land in parcel 1. As regards the Appellant's claim 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.

8 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.

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

10 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.

11 The last observation is that the testator's lands 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 called Nuncie 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.

12 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.

13 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.

14 Before I go on to deal with the grounds of appeal I think I 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's case 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.

15 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 11/2 acres, parcel 59016B 19 to consist of 1¹/₄ acres; and parcel 59016...