Sylvia Gayle-Henry v Lloyd Gayle and Cedric Gayle
| Jurisdiction | Jamaica |
| Judge | Phillips, J.A.,Williams, J.A.,Edwards, J.A. (AG) |
| Judgment Date | 09 February 2018 |
| Neutral Citation | JM 2018 CA 4 |
| Docket Number | No. 65/2013 |
| Court | Court of Appeal (Jamaica) |
| Date | 09 February 2018 |
Court of Appeal
Phillips, J.A., Williams, J.A., Edwards, J.A. (AG)
No. 65/2013
Michael D Palmer instructed by Palmer, Smart & Company for the appellant
Mikhail H R Williams instructed by Taylor, Deacon and James for the respondent
Will - Interpretation — Terms — Determination of meaning of certain provisions in last will and testament of deceased.
[1] I have read in draft the judgment of Edwards J.A. (AG) and I agree with her reasoning and conclusions.
Williams, J.A.[2] I too agree and have nothing further to add.
[3] In this appeal, the appellant challenges the decision made by Sykes J. (the judge) in favour of the respondent, on 7 June 2013. The case concerns the interpretation of certain provisions in the last will and testament of Mr. Clifford Gayle (the testator) dated 16 April 1969. In that will, the testator bequeathed property to the appellant, who was his wife, and to his sons, including the respondents. The dispute really concerns 22 acres of land which the testator bequeathed as follows:
“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 (50%) percent of all proceeds after expenses are cleared during her lifetime.
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 Franklin, Bernel, Lloyd and Keith.”
[4] The relevant background to this case may be found in paragraphs 1, 2 and 3 of the judge's reasons as follows:
“[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. A) his widow, was substituted for him.
[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] 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 [sic] beneficiaries, including Mrs. Henry, under the will of Mr. Clifford Gayle …”
[5] Having heard the application brought by the respondents, the judge found that on a proper interpretation of the relevant provisions, the testator intended to pass to the appellant, a life interest in the 22 acres of land and that on her death the said property was to pass to Franklyn, Bernel, Lloyd and Keith, the sons of the testator. The appellant being dissatisfied with that interpretation, filed notice and grounds of appeal in this court.
[6] In the fixed date claim form filed by the respondents in the court below, they sought declarations relating to the entitlements of the appellant and the children of the deceased under the will in relation to the 22 acres of land. In addition, according to the affidavit evidence of Lloyd Gayle, since his father's will had been probated on 20 March, 1970, the appellant had not accounted to him or the other beneficiaries in respect of his father's estate. As a result, they also sought a number of orders relating to the appellant's continued management of the estate. However, those latter orders were not pursued before the judge and are not the subject of any appeal before this court. Like the judge did in the court below, I will confine myself to the only real issue on appeal, which is, whether the judge was correct in holding that the testator intended to pass a life interest to the appellant, with remainder to the respondents and their brothers, based on the interpretation he placed on the of the provisions in the will.
[7] The judge, in his written judgment, correctly identified the issue to be determined as:
“…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.”
[8] In determining that issue, the judge considered the relevant provisions in the will as well as the submissions made by counsel for the parties. He also considered two authorities, the first being Gravenor v. Watkins (1871) LR 6 CP 500 and the other being DaCosta v. Warburton and Kenny (1971) 12 JLR 520. In dealing with the submissions of counsel, the judge made the following statement at paragraph 13 of his judgment:
“In looking at the rival submission [sic] advanced before this court, one has to bear in mind the warning of Bovell C.3 in Gravenor v. Watkins (1871) LR 6 CP 500. His Lordship said that, ‘It is extremely difficult to construe one will by the light of decisions upon other wills framed in different language. The Court must in each case endeavour to ascertain the meaning of the testator from the language he has used’ (p 504). This principle was restated by Smith J.A. in DaCosta. Smith J.A. emphasised that it ‘is unwise to base a decision on a previous case in which no principle of law is established, but which is based purely on questions of fact or on the construction of a particular document’ (525 C). The principle outlined by DaCosta is applicable but as Smith J.A. and Bovell C.J. said, the key is the wording of the will and not so much the principle itself which is clear enough.”
[9] The judge also determined that the provisions in the will made by the testator in the case before him were different from that in DaCosta v Warburton. Speaking of the provisions in the will in that case, the judge went on to state at paragraph 16 that:
“It is important to note that the gift to Josephine Lucille was stated in clear and absolute terms. No words of limitation appeared in the same sentence or even several sentences afterwards. It was only at the end when the testator spoke of what should happen in the event of a sale that any suggestion of words of limitation on the extent of the estate given to Josephine Lucille arose.”
[10] The judge then held that the actual words used in the will were the most decisive factor and that on the proper construction of the words in the will in DaCosta v. Warburton an absolute interest was devised. He went on to consider the relevant provisions in the will of the testator in the instant case, and said at paragraph 27:
“The meaning of this sentence, despite its inelegance, [is] clear enough. A limitation has in fact been placed on the gift. The testator is saying that Mrs. Henry has the right, during her life time [sic], to enjoy fifty percent of proceeds (meaning net revenue) after expenses are cleared. It would not make sense to interpret this to mean, Mrs. Henry received an absolute gift but during her lifetime she could only use fifty percent of the net revenue. This is inconsistent with an absolute gift. One of the characteristics of an absolute gift is that the beneficiary has full rights of free disposition of [sic] gift and proceeds from [sic] gift. The words are read as a whole and interpreted in their context.”
[11] The judge took into account the fact that the testator had made provision for his mother to be taken care of by the appellant and for her to pay his mother's funeral expenses. The judge also gave his opinion of what he thought was to be done with the remaining 50% of the net proceeds from the land and further considered the devise to the sons after the death of the appellant and said:
“[31] It seems to this court that the testator has made provision for the use of the proceeds, the use of the land and what should happen to the land after his wife's death.
[32] What is clear is that the testator did not intend that Mrs. Sylvia Henry should have a fee simple absolute. She was given the land to enjoy fifty percent of the net profit for herself. The will did not specifically state what should become of the other fifty percent of the net profit but presumably, from the context, that was the portion to be used to look after the testator's mother as requested in the will.
[33] Therefore, on a proper interpretation of the will, this court holds that Mrs. Sylvia Henry has a life interest in the twenty two acres contained in volume 1409 folio 630 of the Registrar Book of Titles with the fee simple absolute, on her death, passing to Franklyn, Bernel, Lloyd and Keith.”
[12] The grounds of appeal filed by the appellant were as follows:
“(a) The trial judge erred in considering the words of the testator ‘To receive fifty percent (50%) of all proceeds after expenses are cleared during her lifetime’ as a qualification and restrictions rather than as repugnant to the absolute gift.
(b) The trial judge erred in finding that the testator intended that the other fifty percent (50%) of [proceeds] from the property other [than] that mentioned in the will is to take care of the testator's mother and to pay for her funeral.
(c) The...
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