Hakim E. F. Gordon Plaintiff/Appellant v Christianie Burke Defendant/Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeGORDON, J.A., CECIL LEWIS, J.A., Chief Justice
Judgment Date30 Nov 1970
Neutral Citation[1970] ECSC J1130-1
Docket NumberCivil Appeal No. 3 of 1970
[1970] ECSC J1130-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice Gordon

The Honourable Mr. Justice P. Cecil Lewis

Civil Appeal No. 3 of 1970

Between:
Hakim E. F. Gordon
Plaintiff/Appellant
and
Christianie Burke
Defendant/Respondent

F.E. Degazon for Plaintiff/Appellant

K.H.C. Alleyne Q.C., with B. Alleyne for Defendant/Respondent

GORDON, J.A.
1

At the hearing of an application by summons in Chambers by the plaintiff/appellant for a declaration that he is one of the reversionary owners of the fee simple absolute of certain lands included in an Indenture of Trust, it was agreed by the parties that the issue be confined to the question of whether the respondent had a right to convey as beneficial owner, property which was the subject-matter of a trust. The learned trial judge having decided that the respondent was entitled to do so, the appellant now appeals from that decision.

2

The notice of appeal was served on the solicitor for two other persons, namely—(i) Castaways 3 Developments Limited, and (ii) Castaways Hotel Limited, but counsel at the Bar agreed that the only real respondent to this appeal is Christianie Burke.

3

The facts revealed by the affidavit evidence in the matter are as follows: —

4

By an Indenture of Trust (hereinafter referred to as "the trust instrument") executed on the 18th March, 1913, George James Christian, a Barrister-at-Law, created a trust in which he named the following persons as likely beneficiaries:Francis Thomas Burke, his two children Margery and Christianie Burke and their lawful children, and Peter Charles Christian, Clara Christian, Maud Christian and their lawful children.

5

Under the trust instrument the legal estate in the Mero Estate and the Cassada Estate was conveyed to Thomas Howard Shillingford as trustee, his heirs or executors to the uses following: —

  • "1. The Trustee, his heirs, or executors shall remain in possession of the said lands, hereditaments, and premises during the life-time of Francis Thomas Burke, or until the said Margery Burke and Christianie Burke shall attain their majority (or marry) or whichever event, the death of the said Francis Thomas Burke, or the majority or marriage of the said Margery Burke and Christianie Burke shall happen later.

  • 2. The said Trustee shall manage, superintend the management, or lease the said Estates or Plantation, whichever he may deem expedient and shall in no case be liable for impeachment for waste.

  • 3. From the rent or net profits of the said hereditaments, the said Trustee shall pay and satisfy the amount which by Bond he the said George James Christian and the said Trustee have bound themselves to pay to the said Francis Thomas Burke; and from any balance which may remain, shall at his discretion pay the whole or such part thereof for the maintenance and personal support or benefit of Margery Burke and Christianie Burke until they shall attain the age of 21 years (twenty-one) or marry.

  • 4. Should either the said Margery Burke or Christianie Burke die under the age of 21 years or without having married and leaving lawful issue, the whole of the lands, hereditaments, and premises shall be held in trust for the survivor.

  • 5. Should the said Margery Burke and Christianie Burke die without attaining the age of 21 years (twenty-one) or without having married and without having left lawful issue, then the said Trustee shall hold, the said lands, hereditaments, and premises in trust for Peter Charles Christian, Clara Christian, and Maud Christian until they shall attain the age of 21 (twenty-one) years or, being girls, attain that age or marry, with power at his discretion to pay any part of the rents and profits of the said hereditaments and premises for the maintenance and personal support and benefit of the said Peter Charles Christian, Clara Christian, and Maud Christian.

  • 6. Should either the said Peter Charles Christian, Clara Christian, or Maud Christian die without attaining the age of 21 (twenty-one) years or marrying and leaving lawful issue, then the whole of the said lands, hereditaments, and premises shall be held In trust for the survivor or survivors of them.

  • 7. Should the said Peter Charles Christian, Clara Christian, and Maud Christian all die without attaining the age of 21 (twenty-one) years or marrying and leaving lawful Issue, then the whole of the lands, hereditaments, and premises shall he held by the Trustee, his heirs, or executors in trust for the said George James Christian or as he shall, by Deed or Will appoint."

6

The following facts relating to persons named in the instrument were accepted by the court below:

Francis Thomas Burke died on the 17th June, 1913.

Margery Burke who was born on 24th February 1902 died in 1919 without lawful issue.

Christianie Burke—the respondent in this case—was born on the 19th January 1906. She is unmarried and had been in possession of the trust property since she became 21 years.

Thomas Howard Shillingford died in 1917 (according to a statement by counsel) without having named anyone as his successor to administer the trust. The record does not disclose who his executors were.

Maud Christian and Peter Christian both died without issue.

Clara Gordon, nee Christian, died in 1964 leaving lawful issue of whom the appellant is one.

7

By a conveyance dated the 29th May, 1952, the respondent as beneficial owner in fee simple sold approximately 179 acres of the Mero Estate to Lionel Edwin Pinard for £1,200.

8

In the course of his judgment dismissing the application the learned trial judge stated thus:

"In my view, the two conditions set out in Clause 4 of the trust deed of attaining majority and of marriage and leaving lawful issue, are in the alternative; and Margery Burke, having died without having attained her majority, unmarried and without issue, the right to possession of the Trustee lapsed when the survivor, Christianie Burke, attained her majority in 1927.

I am further of the view that Christianie Burke then became the sole cestui-que trust with full beneficial interest and was entitled to have the hereditaments conveyed to her and, in turn, entitled to dispose of the same."

9

By leave of the Court the grounds of appeal filed by the appellant were amended and the appeal was argued on the following grounds:

  • "(a) the decision of the learned trial judge be set aside; and that it be declared that: —

  • (b) the learned trial judge erred and was wrong in law in holding that merely by the attainment of her majority in 1927……. 'Christianie Burke then became the sole cestui-que-trust with full beneficial interest and was entitled to have the hereditaments conveyed to her and, in turn, entitled to dispose of the same', notwithstanding the conditions as to marriage and issue in paragraphs 4, 5, 6 and 7 of the said Trusts."

10

It was conceded by counsel for the respondent for purposes of this appeal only that the appellant has a right to move the Court.

11

Counsel for the appellant urged on this Court,firstly, that the absence of technical words of limitation from the trust instrument precluded the respondent from taking the fee simple in the trust property on her having attained the age of 21 years, as was contended by her when she purported as beneficial owner to sell the Mero estate to Edwin Lionel Pinard for £1,200 (see conveyance by Christianie Burke to Edwin Lionel Pinard of 29th May 1952); secondly, that on a proper interpretation of paragraph 4 as modified by paragraph 5 and subsequent paragraphs of the trust instrument, the respondent on attaining her 21st birthday without marrying and having lawful issue, took either an estate in tail or a life interest; thirdly, that by virtue of the conveyance the respondent was stopped from denying that she sold as beneficial owner and consequently could not at this stage avail herself of the terms of the Settled Estates Ordinance,(Cap. 221) Laws of Dominica.

  • (a) the attitude of the courts was to presume in favour of divesting, particularly in a case such as this where the clear intention of the settlor was to convey the legal estate to the respondent on her attaining the age of 21 years; and

  • (b) the provision whereby the respondent was entitled on attaining her majority to call upon the trustee to convey the legal estate to her, rendered the trust an executor one and such as to fall within the category of cases to which the courts were inclined to lend a liberal interpretation in order to give effect to the intention of the settlor.

Counsel for the respondent urged that because—
12

The peculiar circumstances of the instant case, he submitted, rendered it a fitting one for the Court to read "and" for the word "or" in paragraph 4 of the trust instrument.

13

In inviting the Court to adopt such a course, counsel further urged that by doing so absurdities in the trust instrument (e.g. no legal estate in the trust property could vest in anyone,) would be avoided, and the trust brought to a satisfactory end.

14

Because of the Real Property Ordinance (Cap. 219) Laws of Dominica which came into force in 1873 and the fact that the Dominica Legislature never adopted the Conveyancing Act (U.K.) 1881, the operative law in relation to conveyances by deed in Dominica is to be found in (a) the Real Property Ordinance (Cap. 219) Laws of Dominica, and (b) in the Common Law of England as it was prior to 1881 when the Conveyancing Act (U.K.) 1881 came into force there.

15

The requirements for creating certain legal estates are indicated by section 16 of the Real Property Act (Cap. 219) Laws of Dominica which reads as follows:

"No estate of fee tail shall be created, after the passing of this Ordinance, by any deed, or by any will or other instrument, otherwise than by an express...

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