Welch v Medford et Al; Demendonca Claimant

• Jurisdiction: Barbados
• Judge: Douglas, C.J.
• Judgment Date: 09 September 1985
• Neutral Citation: BB 1985 HC 48
• Docket Number: No. 462 of 1982
• Court: High Court (Barbados)
• Date: 09 September 1985

Supreme Court. High Court

Douglas, C.J.

No. 462 of 1982

Welch

and

Medford et al; Demendonca Claimant

Appearances

Mr. W.I. Griffith and Dr. T. Carmichael for the plaintiff.

Miss V. Blenman and Mrs. F. Seales for the Claimant.

Real property - Co-ownership. A claim was brought in relation to foreclosure proceedings taken out by the plaintiff — The claimant contended that he was entitled to a parcel of land which fell to him as a result of a devise in a will made by his great grand mother MCB to her grandchildren, he having been left the share of his deceased aunt (one of these grandchildren) in her will — The Court noted that in construing a will the first principle is to give effect to the intention of the testatrix as expressed in the terms of the will — Court made a finding that the devise of the great grandmother to “Cleopatra forever” were used as words of limitation giving the land to Mrs. Medford's children as joint tenants for their lives and the lives of the survivors and survivors with several remainders to them as tenants in common — Further the defendants had mortgaged the land to the plaintiff and this being an act inconsistent with the joint tenantry then existing had effectively severed it and turned it into a tenancy in common — However, the claimant failed in his effort to prove that he was a devisee under the will of his aunt who was a granddaughter of MCB; the only evidence of his entitlement was a disposition in an unproved paper-writing — The Court made an order that the claimant's deceased aunt was entitled to an undivided share as tenant in common from the date of the mortgage subject to her legal personal representative being substituted as claimant.

Will - Interpretation. The issue to be decided concerned whether the devisee to the deceased daughter's children “their respective heirs and assigns for ever” created a joint tenancy or a tenancy in common — Court noted that the first principle when construing a will was to give effect to the intention of the testatrix as expressed in the terms of the will — This was to be done by ascertaining the meaning of the words she used giving effect as far as possible to each word and each clause — Court found that on the terms of the will a joint tenancy was created.

JUDGMENT:

1 These are foreclosure-proceedings taken out by the plaintiff Mortgagee in order to obtain title in the defendants for two portions of land at Codrington Hill, St. Michael, containing respectively 6,070.89 square metres and 649.9 square metres and valued at $40,000 and $5,000 respectively.

2 The writ was filed on the 15 ^th of June, 1982. The Registrar advertised for claims and on the 9 ^th of September, 1982 Mervin Alfred deMendonca and his aunt Gwendolyn Eunice deMendonca, by committee, filed a claim in these terms: –

• “1. That Mary Christian Bowens by her probated will devised the portion of land the subject matter of this title suit to her daughter Cleopatra Medford's children.

• 2. That the claimant the said Gwendolyn Eunice deMendonca is one of the children of the said Cleopatra Medford.

• 3. That the claimant the said Gwendolyn Eunice deMendonca lived on the said land since the 30 ^th day of June 1954 during the lifetime of the said Cleopatra Medford who gave her and her husband Louis Leonard deMendonca permission to erect a house on the said land.

• 4. That Ivoe Medford who was another daughter of the said Cleopatra Medford moved on to the said land in 1957 and lived on the said land up to the time of her death on the 20 ^th January, 1982.

• 5. By her will which is being probated in the High Court of Barbados the said Ivoe Medford devised her share and/or interest in the said land to her nephew the said Mervin Alfred deMendonca.”

3 Prior to this matter coming on for hearing, an application was made to the High Court under the Mental Health Act, Cap. 46 for the appointment of a Committee to manage the affairs of the first-named defendant, Beryl Celeste Medford, she, by reason of her mental infirmity, being incapable of managing her affairs. On the 17 ^th of July, 1985 an order was made in the High Court appointing the first-named defendant's nephew, Colin Browns, to exercise the powers of a Committee over her estate.

4 It is agreed by Counsel that the case turns entirely on the construction of the will of Mary Christian Bowen who died in this Island on the 15 ^th of June, 1927 and whose will was admitted to probate in the Court of Ordinary on the 26 ^th of August, 1949. The particular disposition in the will is the following: –

“I give dismiss (sic) and bequeath to my beloved son Rupert Harold Bowen who is at present in a foreign land all the certain piece of land situate at Codrington Hill in the parish of Saint Michael containing by admeasuring One acre two roods of land 1 acre, 2 Rds, butting and bounding on lands of Frank Hutson, on lands of Cuthbert Small and the Public Road, and howsoever else the same may butt...