Powery v Powery

• Jurisdiction: Jamaica
• Judge: (Lewis, Henriques and Waddington, JJ.A.)
• Judgment Date: 01 December 1964
• Date: 01 December 1964
• Court: Court of Appeal (Jamaica)

Court of Appeal of Jamaica

(Lewis, Henriques and Waddington, JJ.A.)

POWERY

and

POWERY

R.C. Rattray for the appellant;

H.G. Edwards for the respondent.

Case cited:

(1) Carter v. Greenall, 195279 CILR 12.

Legislation construed:

Real Property Representative Law (Laws of the Cayman Islands, 1963, cap. 145), s.3(1):

Where real estate is vested in any person, without a right in any other person to take by survivorship, it shall on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, as if it were a chattel real vesting in them or him.

Intestates Estates and Property Charges Law (Laws of Jamaica, 1953, cap. 166), s.3(1):

With regard to the real estate and personal inheritance of every person dying after the commencement of this Law, there shall be abolished-

(a) all existing modes, rules and canons of descent, and of devolution by special occupancy or otherwise, of real estate, or of a personal inheritance, whether operating by the general law, or otherwise howsoever . . . .

Real Property Representative Law (Laws of Jamaica, 1953, cap. 332), s.3(1):

Where real estate is vested in any person, without a right in any other person to take by survivorship, it shall on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, as if it were a chattel real vesting in them or him.

Settled Land Law (Laws of Jamaica, 1953, cap. 355), s.2(1):

Any . . . Law of this Island . . . under or by virtue of which . . . any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, creates or is for purposes of this Law a settlement.

s.44(1): If at any time there are no trustees of a settlement within the definition in this Law . . . the Court may, if it thinks fit, on the application of the tenant for life or of any other person having, under the settlement, an estate or interest in the settled land . . .

appoint fit persons to be trustees under the settlement for purposes of this Law.

Succession-intestacy-title to real property-title to real property on death before 1955 not vested in administrator-devolution creates settlement under Settled Land Law (Jamaica, cap. 355), s.2(1) and administrator may seek appointment as trustee under s.44(1)

The appellant brought an action in the Grand Court to recover damages for trespass from the defendant and an injunction to prevent him from committing further acts of trespass in respect of land in respect of which he held letters of administration.

The appellants father died intestate in September 1955 and the appellant obtained letters of administration to his estate in 1959, He claimed to exercise rights over the land in the capacity of heir-at-law, personal representative, or administrator of the estate and brought the present proceedings against the defendant in one or all of those capacities.

The Grand Court found in favour of the defendant on the facts and the law, holding that since (a) the...