Raul Jackson v Ender Jackson

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHPT2011/0056 IN THE MATTER OF AN APPLICATION BY RAUL JACKSON FOR A DECLARATION OF POSSESSORY TITLE TO LAND AND IN THE MATTER OF A CLAIM BY ENDER JACKSON IN OPPOSITION TO THE SAID APPLICATION BETWEEN: RAUL JACKSON APPLICANT of Yambou -AND- ENDER JACKSON RESPONDENT of Yambou Appearances: Mr Arthur Williams and Mr Sten Sargeant Counsel for the Applicant, Mr Ronald Marks and Mrs Patricia Marks Counsel for the Respondent. 2015: May 12 June 3 DECISION BACKGROUND

[1]Henry, J. (Ag.): Phillip Jackson fathered Raul Jackson, Harold Jackson, Everard Jackson and at least three other children. He acquired land at Yambou Estates and reportedly arranged for his children to receive individual portions after his demise. Phillip Jackson and then Harold Jackson pre-deceased Raul Jackson. Raul Jackson subsequently applied for a declaration of possessory title of approximately 1.2 acres of the said lands (“subject property”). He has since died. Harold Jackson’s wife Ender Jackson opposes the application and contends that her late husband’s estate is entitled to a part of those lands. She has deposed that a third brother “Conrad” is also a co-beneficiary. Mrs Ender Jackson has not indicated how much of the land she asserts belongs to her husband and “Conrad”.

[2]Raul Jackson’s estate is represented in this action by his daughters Ines Tecla Hagley and Urmin Jackson. On the date set for trial, Raul Jackson’s and Harold Jackson’s estates made a joint preliminary submission to the court, that they wished to formalize a Consent Order granting a declaration of possessory title to Harold Jackson’s estate in respect of 8,880 square feet of the said lands based on a survey which was conducted the previous weekend. The survey plan was not filed and is therefore not before the court. In addition, Raul Jackson’s estate submitted that the court should enter a “consent” order granting a declaration of possessory title to his estate in respect of the remaining 43,904 sq. ft. of land. Ender Jackson objects to such a declaration being part of a consent order, and contends that the court is required by law to conduct an assessment of the evidence to determine whether Raul Jackson’s estate is so entitled.

ISSUES

[3]The issues in this case are two-fold: 1. Whether the subject property falls to be administered under an intestacy or testacy? 2. Whether the respective pleadings of Raul Jackson’s and Harold Jackson’s estates have disclosed a reasonable basis on which to grant a declaration of possessory title to either of them?

ANALYSIS

Issue 1 – Does the subject property fall to be administered under an intestacy or testacy?

[4]There appears to be agreement between the parties that the subject property comprises part of the estate of Phillip Jackson deceased. Likewise, the parties do not dispute that Phillip Jackson intended Harold Jackson and Raul Jackson to each inherit a portion of the land. Similarly, the parties seem to accept that Phillip Jackson made a “will” which was never probated and by all accounts has been lost. Other than oblique references by Ender Jackson and Urmin Jackson in their affidavits to the “will”, neither party seems to rely on the existence of a “will” as the basis for their respective claim. Ms Urmin Jackson alludes to the “will” in her affidavit , referencing statements allegedly made by Phillip Jackson in a letter addressed to his “son”, in which he supposedly stated that he was going to make a will. Other than Ms Jackson’s say so, there is no basis on which to ascertain conclusively who wrote that letter, to whom it was addressed and whether the referenced will was made. In any event, Ms Jackson’s statements on this score are entirely hearsay. Raul Jackson’s estate contends that they are nonetheless admissible as evidence and proof of their contents pursuant to the Evidence Act (“the Act”).

[5]Mrs Ender Jackson avers that two executors were appointed in the will and that Harold Jackson was named a beneficiary. She identifies her deceased husband as her source of information. Based on her averments, it does not appear that either Mrs Jackson or her husband witnessed the execution of the “will” or the “will” itself. Her account, received indirectly and verbally from her husband is therefore hearsay. The Act provides that an oral or written statement made by someone who is not called as a witness in civil proceedings is admissible in evidence to prove the facts asserted in it, if permitted by rules of court and the Act. It stipulates that the person seeking to adduce such evidence must first obtain the court’s permission and usually must wait until after examination-in-chief of the person who made the statement.

[6]It provides also that such statement is admissible to prove the facts stated in it, only by direct oral evidence of the maker of the statement or by someone who heard him make it. In determining whether to admit hearsay into evidence and how much weight to attribute to it, the court is entitled to draw reasonable inferences from the circumstances in which it was made, and consider whether the statement was made contemporaneously with the occurrence of the stated facts and whether the maker had an incentive to conceal or misrepresent those facts. The facts asserted by Ender Jackson and Urmin Jackson regarding the making of the will are echoed in a limited way by Everard Jackson who stops short of claiming that Phillip Jackson made a will. Interestingly, he deposes that his father verbally stated how his lands were to be shared while he was alive. Phillip Jackson, Raul Jackson and Harold Jackson are not prospective witnesses in this matter. The statutory requirement that they testify cannot therefore be met.

[7]The affidavit statements of Ender Jackson, Urmin Jackson and Everard Jackson were not made contemporaneously with the alleged making of the will. There seems also to be some uncertainty regarding the actual execution of the will. In the absence of conclusive or compelling material from which a reasonable inference can be drawn of the existence of such a will, the balance swings against admission of such hearsay testimony. Even if Phillip Jackson made a will, all indications are that it has been irretrievably lost and except for perhaps two devisees, there do not appear to be any reliable details of the other supposed “testamentary dispositions.” In those circumstances, at least part of Phillip Jackson’s estate would devolve on intestacy. The hearsay material which is foreshadowed in Mrs Ender Jackson’s and Ms Urmin Jackson’s Affidavits regarding the making of a will is inadmissible without more and I so find. Furthermore, the apparent concession by Raul Jackson’s estate that Harold Jackson’s estate is entitled to 8,880 sq. ft. of the subject land strongly suggests a withdrawal from their position that they were entitled to be granted a declaration of possessory title in respect of that portion. The implication in respect of the remaining 43,904 sq. ft. is obvious. I make no finding that the subject property was disposed of by will. In the absence of such reliable particulars, I am constrained to and do find that Phillip Jackson’s interest in the subject property falls to be administered under the intestacy laws. Issue 2 – Has Raul Jackson’s or Harold Jackson’s estate on the pleadings, disclosed a reasonable basis on which to grant either a declaration of possessory title?

[8]Raul Jackson’s estate relies on his alleged exclusive and undisturbed occupation of subject property in excess of 12 years to ground his claim for a declaration of possessory title. They submit that there is material from which it can be inferred that Phillip Jackson left a will chronicling his wishes regarding distribution of his estate. They contend also that the existence of a will and appointment of executors creates a situation in which Raul Jackson was able to acquire adverse possession of the subject property. There is no evidence on which to make a finding that a will exists or even that all of the subject property was devised by will. The better view is that the subject property in respect of which Raul Jackson seeks a consent order, devolves on intestacy. Mrs Ender Jackson contends that her husband inherited a portion of the said lands by virtue of a will made by his father and she cautiously hints at the entitlement of other beneficiaries under that “will”. She has not exhibited a will. Without examining in detail the substance of these assertions as outlined in the respective causes of action, having regard to the earlier finding that the subject property falls to be administered in accordance with the laws of succession on intestacy, I turn to consider their effect in the circumstances of this case.

[9]It is established law that beneficiaries’ interests in an intestate’s estate remain vested in the Honourable Chief Justice until Letters of Administration are extracted; and during that period it is deemed to be presumptively held on a trust for sale for the beneficiaries’ benefit. When an administrator is appointed, he or she then holds the property on statutory trust for sale. Until an administrator extracts Letters of Administration in the estate, any beneficiary who occupies the subject property is deemed to hold it on a constructive trust for the other beneficiaries. In those circumstances, the co-beneficiaries’ interest cannot be extinguished through adverse possession by a beneficiary. The affidavits in this case suggest that Raul Jackson occupied the subject property in excess of 12 years. It appears also that there might be other beneficiaries of Phillip Jackson’s estate who have not entered an appearance in the instant matter. To make an order as proposed by the parties would ignore the interests of other co-beneficiaries. Based on the factual matrix chronicled in the affidavits, Raul Jackson, Harold Jackson, Conrad Jackson and Phillip Jackson’s other children are co-beneficiaries of the subject property. Therefore, neither Raul Jackson nor Ender Jackson is entitled to acquire adverse possession of the subject property or any part of it through adverse possession. In the absence of representation by those co-beneficiaries, the interests of justice would not be served by making a consent order in the terms requested by the parties. I therefore make no consent order granting a declaration of possessory title of any part of the subject property to Raul Jackson or Ender Jackson.

ORDERS

[10]It is accordingly ordered: The Application by Raul Jackson’s and Ender Jackson’s estates for a Consent Order granting a declaration of possessory title to Ender Jackson in respect of 8,880 sq. ft. of property situated Yambou comprising part of the Yambou Estates is dismissed. The Application by Raul Jackson’s estate for a “Consent” Order granting a declaration of possessory title in respect of 43,904 sq. ft. of property situated Yambou comprising part of the Yambou Estates is dismissed. No order as to costs. ….………………………………… Esco L. Henry HIGH COURT JUDGE