Caesar v Morancie

• Jurisdiction: Dominica
• Judge: Rawlins, J.
• Judgment Date: 28 September 2001
• Neutral Citation: DM 2001 HC 10
• Docket Number: 191 of 1994
• Court: High Court (Dominica)
• Date: 28 September 2001

High Court

Rawlins, J. (Ag.)

191 of 1994

Caesar

and

Morancie

Appearances:

Mrs. Joan Prevost for the applicant.

Mr. Ashton C. Piper for the respondent

Will - Construction — Bequests — Whether repugnant to absolute ownership which will conferred on plaintiff and therefore voidable — Wills Act, Cap. 9:01, ss. 28 and 29 (Dominica) — Wills Act, 1837 (U.K.).

1 Rawlins, J. (Ag.): The Facts: This case concerns the construction or interpretation of a devise or bequest which is contained in a Will. The testator, Allan Caesar was a blacksmith by trade. He lived at Pottersville, St. George, in the Commonwealth of Dominica. He was the fee simple owner of a parcel of land at River Bank, Roseau, and owned the building thereon in which he operated a workshop. The plaintiff is his son. The defendant who worked in the workshop is the nephew of the testator.

2 The Will in which the devise or bequest is contained was made by the testator, and is dated 23rd July 1982. The testator died on 12th December 1997. That Will states as follows:

“DOMINICA

This is the last and only Will and Testament of Allan Caesar of Pottersville, Parish of Saint George in the Commonwealth of Dominica.

I appoint David Morancie to be Executor of this my last Will and Testament.

I direct that my burial, testamentary and probated expenses including estate duty shall be paid by David Morancie.

I give, bequeath and devise as follows:

To my son, Musgrave Caesar my lot with workshop thereon at Roseau;

I direct that David Morancie shall be in charge of the workshop as long as he wants;

I bequeath to Briget Caesar, my daughter her maintenance and schooling from the money derived from the workshop, until she is marred.

I bequeath that my adopted son, Hermit Douglas and my nephew, Jude Smith, if they come home and want employment and there are vacancies in the workshop, they shall be employed by the man in charge of the workshop.

I bequeath to my sister, Ann Smith my shares in St. Alphonsus Credit Union.

I direct that my sister, Ann Smith shall pay to my Executor, David Morancie all the expenses for my burial, Testamentary and probated expenses including estate duty.

I bequeath to Edith Henderson, my caretaker all my savings in the Royal Bank of Canada, Roseau, Commonwealth of Dominica, to be divided equally among herself, Briget Caesar and Josephine Caesar.

In witness whereof I have hereunto set my hand this 23rd day of July in the year of Our Lord, One Thousand Nine Hundred and Eighty-two.

Signed by the above named Testator as his last III in the presence of us, both present at the same time, who in his presence and at his request and in the presence of each other have hereunto subscribed our names His Allan X Caesar Mark

Witnesses: s as

(Sgd.) S. L. Jolly

Pensioner

Winnifred Dover”

Saint

“DOMINICA

3 On 16th September 1988, probate of this Will was granted to the defendant, David Morancie, the Sole Executor named in the Will. The Grant of Probate was duly Registered in the Book of Probates, Liber “NG1” Folio 73-75.

4 The Pleadings

5 Dyer and Dyer, Solicitors, commenced the action in this case on behalf of the plaintiff by way of Originating Summons dated 28th April 1994, and filed on 12th May 1994. The plaintiff sued as a beneficiary named in the Will of the testator. The defendant was sued in his capacity as the Sole Executor named in the Will. The essential aspects of the plaintiffs prayer are stated thus in the Summons;

6 “By this Summons the plaintiff seeks the following relief pursuant to Order 63, rule 2, namely:–

1. That it may be determined upon the true construction of the Will;

• (a) What comprises the bequest of the plaintiff Musgrave Caesar in the Will of the deceased and what is the interest of the said Musgrave Caesar in the bequest in the said Will,

• (b) What is the flue interpretation of the following paragraphs

“To my son, Musgrave Caesar my lot with workshop thereon at Roseau; I direct that David Morancie shall be in charge of the workshop as long as he wants; I bequeath to Briget Caesar, my daughter her maintenance and schooling from the money derived from the workshop, until she is marred. I bequeath that my adopted son, Hermit Douglas and my nephew, Jude Smith, if they come home and want employment and there are vacancies in the workshop, they shall be employed by the man in charge of the workshop.”

• (c) What are the rights and interests if any of David Morancie in respect of the workshop, a bequest of the Will of the said deceased.

2. That provision may be made for costs of this application.”

7 Bernard Anselm of Roseau, Dominica deposed by way of Affidavit of Service, which was sworn and filed on 13th May 1994, that he effected personal service of the Originating Summons on the defendant at the workshop at River Street, Roseau, Dominica on 12th May 1994. On 16th May 1994, Mr. C. Ashton Piper entered an Appearance on behalf of the defendant.

8 By way of Notice of Change of Solicitor dated and filed 25th May 1999, Mrs. Joan K. R. Prevost gave Notice that she was assuming conduct of the matter as Solicitor on behalf of the plaintiff in place of Dyer and Dyer. She then made an application dated 5th June 2001, which was filed on behalf of the plaintiff on 14th July 1999, for an Order for the Renewal of the Originating Summons by which the action was commenced. Mrs. Prevost also applied in that Application for Orders that evidence in the matter be by Affidavit and for the setting of the date for the hearing of the Summons.

9 The Application was supported by an Affidavit, which was deposed by Joan Daniel of Les Pointes, Massacre, St. Paul, Dominica on 1st June 1999 and filed on 14th June 1999. Joan Daniel is a daughter of the testator and a sister of the plaintiff. The plaintiff had appointed her to be his Attorney with power, infer alia, to act in proceedings which relate to his interest under the Will of the Testator. The appointment was made by way of a Power of Attorney on 15th April 1999, which was duly registered as No. 40 of 1999 in the Book of Powers of Attorney L No. 3 Folios 274 to 275.

10 The Orders sought by the Application in this case, which are referred to in paragraphs 6 and 7 foregoing, were granted by Cenac, J. on 28th June 1999. The matter was set for hearing on 11m November 1999. The court ordered the Parties to provide written submissions by 31st December 1999. Solicitor for the plaintiff filed written legal submissions in May 2000.

11 For the purposes of the actual hearing of the Application for the construction of the Will, Joan Daniel, the attorney for the plaintiff also deposed an Affidavit on the 5th November 2000. In that Affidavit, she deposed in paragraphs 4, 5, 6 and 7 as follows:

4

That in the said Will the deceased devised ‘to my son Musgrave Caesar my lot with workshop thereon in Roseau” and the plaintiff is desirous of having the said property transferred to himself. 5. That the defendant has continued since the death of the deceased to occupy and operate the business of the workshop but has not given any report to the plaintiff in relation to his workshop operation of the business. 6. That I have been informed by the applicant that he has made several attempts to discuss the situation with the defendant but he has failed or refused) to discuss with the plaintiff. 7. That to the best of my knowledge, information and belief the said property is registered property and the defendant may have the document of fide in his possession.

12 In addition to the written submissions which were made by Mrs. Prevost, both Mrs. Provost and Mr. Piper made oral submissions when the matter was heard by me in Chambers on 13th December 2000. In essence, in her submissions, Mrs. Provost has urged the court to find that the words in the bequest; “To my son Musgrave Caesar my lot with workshop thereon at Roseau;” bequeathed the absolute gift and title to the land and the workshop to the plaintiff, because the words which follow, which purport to qualify that gift, constitute conflicting and incompatible bequests and are therefore repugnant to the gift of the plaintiff. She contended that on the authority of the cases Da Costa v. Warburton and Kenny (1971) 17 W.I.R. 334 and Yvette Barzey v. John Charles (Civil Appeal No. 8 of 1999, OECS Court of Appeal, Dominica), the plaintiff is entitled to have full and unencumbered ownership in the property vested in him.

13 On the other hand, Mr. Piper contended that it might be possible to reconcile the gifts that are contained in the bequest, when one considers the language used in the will, the local culture, and the blood and working relationships which existed between the testator and the other persons for whom he sought to provide in relation to the workshop. As the Will which has been reproduced at paragraph 2 herein indicates, those other persons are the defendant, Briget Caesar, Hermit Douglas and Jude Smith. Mr. Piper also submitted that in the construction of a Will or a bequest therein, the court should strive to reconcile even apparent inconsistencies if possible, in the attempt to give effect to the intention of the testator. He supported this by reference to the case Re Potter's Will Trust (1943) 2 All E.R. 284. He also referred to Re Coward (1887) 57 L.T. 285, C.A.; affirmed [1886 1890] All E.R. Rep. 896; (1889) 60 L.T. 1; and Jackman v. Edwards (1966) 8 W.I.R. 329. Both Counsel also referred to section 28 of the English Wills Act, 1837.

14 After the hearing on 13th December 2000, I reserved decision until 20th December 2000. On the latter date I advised both Counsel that I thought it was necessary to give further consideration to the case. The decision is now hereby given.

The Applicable Legal Principles

15 The legal principles which arise for consideration in this case reveal a necessary coexistence between everyday ordinary language which reflect the practical...