Lloyd Gayle and Another v Sylvia Gayle

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 07 June 2013
• Neutral Citation: [2013] JMSC Civ 79
• Docket Number: CLAIM NO. 2009 HCV 01243
• Court: Supreme Court (Jamaica)
• Date: 07 June 2013

[2013] JMSC Civ 79

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2009 HCV 01243

Between:

In The Matter of The Estate of Clifford A Gayle (Deceased) late of Cave P.O. of the parish of Westmoreland

and

In The Matter of The Intestates' (Estates and Property Charges) Act

and

In The Matter of An Application under the Partition Act

Lloyd Gayle

First Claimant

and

Cedric Gayle

Second Claimant

and

Sylvia Gayle (as the Executrix of the Estate of Clifford Gayle, Deceased)

Defendant

INTERPRETATION OF WILL — WHETHER WIFE HAD LIFE INTEREST — WHETHER SUBSEQUENT DEVISE VOID FOR REPUGNANCY — SECTION 23 OF THE WILLS ACT

IN CHAMBERS

Sykes J

1 [1] Messieurs Lloyd Gayle and Cedric Gayle are brothers, two of ten children produced by the testator Mr Clifford Gayle. Both gentlemen have filed an application asking the court to interpret the will of Mr Clifford Gayle. Mr Clifford Gayle was a farmer and butcher who acquired a fair amount of real estate in his life time. At the time of his death in April 1969, he was married to the defendant, Mrs Sylvia Gayle, now Mrs Henry. Mrs Henry was appointed one of the executors and she was also named as a beneficiary. Mr Lloyd Gayle has died since the application was filed. Mrs Augustine Amantine Gayle (Mrs A), his widow, was substituted for him.

2 [2] Mrs Henry has formed the view that under the terms of the will, twenty two acres of land at Mount Ricketts were hers absolutely, that is to say, she had an estate in fee simple absolute which had no other rights attached to it. Messieurs Lloyd Gayle and Cedric Gayle did not agree. They believed that she has only a life interest, and after her death, they and other named beneficiaries would inherit the estate in fee simple in respect of the twenty two acres. Mr Lloyd Gayle had lodged a caveat against the title on June 16, 2008. The caveat lapsed and the land was transferred to Starline Construction and Realty Limited (Starline) under an agreement for sale between Starline and Mrs Henry.

3 [3] This state of affairs led Mr Lloyd Gayle and his brother to launch this application in which they are asking the court to declare the interests of the all beneficiaries, including Mrs Henry, under the will of Mr Clifford Gayle. However, during the application it became clear that the real issue between the parties was whether Mrs Henry took a fee simple absolute (and consequently full rights of disposition) or a life interest in respect of the twenty two acres of land at Mount Ricketts. This judgment concerns only this acreage and no decision is made regarding the other bequests and devises since there is now no issue between the parties in respect of the other dispositions.

4 [4] The resolution of this application depends on the proper interpretation of the relevant provisions of the will. The will that has led to this application is as follows:

THIS IS THE LAST WILL and testament of me Clifford A Gayle of Cave P.O. Westmoreland in the County of Cornwall.

I HEREBY revoke all wills and testamentary instruments heretofore by me made. I appoint Franklin Gayle of Mearnsville Westmoreland and Sylvia Gayle of Cave, Cave P.O. Westmoreland to be the Executors of this my will. I direct my Executors to pay my just debts and funeral and Testamentary Expenses.

I give and bequeath to my wife Sylvia Gayle all that portion of land part of Mount Ricketts approximately (22 acres) twenty two acres to receive fifty percent (50%) of all proceeds after expenses are cleared during her life time .

She is to take care of my mother and pay her funeral expenses. At the death of my wife the said twenty two acres (22 acres) of land is to be given to my sons Franklyn, Bernel, Lloyd and Keith. All balance of money owed to me on the portion of Mount Ricketts sold recently is to be paid to my wife Sylvia Grant and she is to give titles to the recent buyers. I give and bequest to my son Keith and my daughter Babeth Joy all that portion of land at Mearnsville (1¹/₂ acres) One and a half acres more or less and a dwelling house. This land and house must not be sold at all. I give and bequeath all that portion of land called Thompson land (part of Lindores) 6 acres more or less to my sons Franklin, Bernel and Lloyd and my daughter Hazel, Pearline, Vivian to be divided equally.

I further agree and give to my wife Sylvia Gayle authority to give to my step daughter (Ruby) Mrs Iris Powell the sum of Fifty Pounds (£50) as soon as it is available.

I give to my executors the said Franklin Gayle and Sylvia Gayle the sum of Twenty-five pounds .

(emphasis added. Other than added emphasis the will is reproduced as it was in the original).

5 [5] Several affidavits have been filed. Mr Lloyd Gayle's affidavit in support of his application gives the background leading up to the application. The most important portions stated that since the probate of his father's will (which occurred on March 20, 1970), Mrs Henry, has not accounted to him or the other beneficiaries in respect of her stewardship of his father's estate. He alleged that he heard that the twenty two acres were about to be sold and he feared that it will be sold at an undervalue. He further stated that he had lodged a caveat to prevent the transfer of the twenty two acres until the will had been interpreted. Unfortunately, as is now known, the caveat lapsed and the transfer was effected.

6 [6] Mr Lloyd Gayle's affidavit is relied on and supported by, his wife, Mrs A. Mrs A's affidavit added the following information. She said that in August 2009, she and her husband secured a valuation of the property (the twenty two acres). The valuators stated that the property was valued at JA$30,500,000.00.

7 [7] Mrs Henry also filed affidavits. She filed two affidavits of the same date. She began by stating that she entered into a sale agreement with Starline for the sale of 225 acres. The acreage seems to be a mistake. In the submissions before this court, it is common ground that it is twenty two acres which are in dispute.

8 [8] Mrs Henry stated that she is not “currently holding funds on account of income generated from the estate ownership of the property” (paragraph 7 of affidavit of November 10, 2010 intituled in part “in response to notice of application for court orders). In paragraph 9 of the same affidavit she says that she is “unable to render a full account of the moneys collected and held by me as the documents to inform me of the various transactions cannot be located by my attorneys at law … despite my request for the file to be forwarded to my present attorneys at law.”

9 [9] In her other affidavit of the same date Mrs Henry accepted that she entered into a sale agreement with Starline for JA$12,000,000.00. According to her, the agreement was dated April 4, 2009. The purchaser was said to be in possession of the property since March 2008.

10 [10] Under cross examination it turned out that the selling price was set by the Starline. Starline got the valuation. None was done by Mrs Henry. The claimants secured another valuation which stated that the property was grossly undervalued. Their report stated that market value was JA$35,000,000.00 with a forced sale value of JA$27,000,000.00.

Interpretation of the Will

11 [11] Mr Palmer submitted that under the rules of construction developed in relation to wills, Mrs S had absolute interest and therefore any later disposition what purported to cut down the full extent of the interest she received was void for repugnancy. Counsel further submitted that clear words cannot be controlled by subsequent words. According to learned counsel, the clear words of giving Mrs S an absolute interest were these:

I give and bequeath to my wife Sylvia Gayle all that portion of land part of Mount Ricketts approximately (22 acres) twenty two acres …

Counsel took the view that the rest of the sentence —

… to receive fifty percent (50%) of all proceeds after expenses are cleared during her life time.

— is of no moment and should be regarded as an attempt to cut down the absolute interest devised in the earlier part of the sentence. The clause stating that the land should go to others after the death of wife, according to counsel, had no legal significance.

12 [12] Mr Palmer relies on the Court of Appeal of Jamaica's decision in DaCosta v...