CARLITA CORDICE v PARTIES INTERESTED IN THE WILL OF WALLACE JACK

THE EASTERN CARIBBEAN SUPREME COURT THE HIGH COURT OF JIJSTICE HIGH COVRT CIVIL CLAIM NO. 368 OF 2004 BETWEEN: ('ARLITA CORDICE Claimant PARTIES INTERESTED IN THE WILL OF WALLACE JACK Respondents Appearances: Mr. P R. Campbell qc for Claimant Sir. Henry Forde QC tor Respondent:-, 2006: April 20 DECISION The application concerns the interpretatIOn 01 a provision in a will. Wallace Jack died. He left a will 111 which the t()llowing provision appears. Clause 6 of the Testator's Will is in the followmg tenns: "I give, devise, and bequeath to my daughter, Vivian Doris Jack, my piece of land situate at Grenville Street, Kingstown, and bounded as in the Title Deed, and the property situated thereon, known as Lot 70, and all the furniture thereof,-on condition that she remain unmarried. In the event of her marrying, or in the event of her deceased, the land, property and furniture shall go to my two daughters, Ina Elaine .Jack and Gwendolyn Dear. In the event of their decease the land, property and furniture shall go in turn to my grand-daughter, Wallace McMaster, Carlita Jack, Oswald Jack, Wallace Dear, Brenda Dear, Glenroy Dear, and Olga Dear, in the event of the decease of each preceding party. On no condition are the land and Property to be sold." The Issues [ II Does this provision In the will tail t()r uncertainty or alternatively because it offends against the principle which prohibits permanent restraints upon alienation of real property') f2] The cardinal principle which governs the interpretation of wills IS that the aim IS to give effect to the mtention of the testator. The whole will IS to be considered along with any other relevant eVidence In ascertainmg that Intention. [31 The primary beneficiary of the real property and furniture contamed in Lot 70 al Grenville Street Kingstown is Vivian Jack the daughter of the deceased. In the event of her marrying. or in the event of her death the property goes to the other beneficiaries. I pause here to note that these phrases cannot be synonymous. 'In the event" of her marrying must mean 'should she marry' .. [n the event" of her death could mean either' should she die (before the testator) or when she dies- as obviously die she must. Fortunately as events have gone. nothing turns In this ambIguity as Vivian .lack is now deceast:d. So too are Ina Jack. Gwendolyn Dear and Wallace Mc Master. I am content to view Clause 6 as haVIng created a succt:ssion of life interests as follows: Vivian Jack (Deceased)

2.Ina Elaine Jack and Gwendolyn Dear (Deceased) 3 Wallace Mc Master ( Deceased)

4.Carlita .lack

5.Oswald Jack (Deceased)

6.Wallace Dear

7.Brenda Dear

8.Newlin Dear

9.Glenroy Dear

10.Olga Dear 10. Olga Dear Had this been the end of the provision little difficulty would have been posed but Clause 6 ends with the sentencet\On no condition are the land and property to be sold:­ Clearly this I~ a pnn lSlon which is void. It purports to prohibit the alienation of the property l()rever I have heen greatly assisted hy the submissIons of both counsel and the authorities to whIch I have been reterred, The ljuestlUl1 which now must be determmed IS whether this otTending provision can be removed from the will or whether the entire clause must tail, If the latter is the case then the gin fails and i~ to he deah with according to the rules of Intestate succession, If former Is the correct Interpretation then the gift can be saved. I consider that when the will IS read in its entirety that this sentence-hanging as it does on its own can be severed from the will. [61 What then is the effect of Clause 6') I conclude that the Claimant is now the life tenant of the property After her death it will pass in turn to each of the beneticiaries who sun 1ve her I7J Sir Henry tor the detendants suggests that upon the death of the ultimate lik tenant the property tails into residue. I do not agree. [81 Having removed the offendmg sentence from Clause 6 of the will I have regard tu section 31 of the wills Act Cap 384. Where any real estate is devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention appears by the will. [ consider that the etTect or thIs prmlSlOn is to pass to the ultimate survlvmg beneticiary the fee simple in Lot 70. ~~l~············ MASTER

THE EASTERN CARIBBEAN SUPREME COURT THE HIGH COURT OF JIJSTICE HIGH COVRT CIVIL CLAIM NO. 368 OF 2004 BETWEEN: (‘ARLITA CORDICE Claimant PARTIES INTERESTED IN THE WILL OF WALLACE JACK Respondents Appearances: Mr. P R. Campbell qc for Claimant Sir. Henry Forde QC tor Respondent:-, 2006: April 20 DECISION The application concerns the interpretatIOn 01 a provision in a will. Wallace Jack died. He left a will 111 which the t()llowing provision appears. Clause 6 of the Testator’s Will is in the followmg tenns: “I give, devise, and bequeath to my daughter, Vivian Doris Jack, my piece of land situate at Grenville Street, Kingstown, and bounded as in the Title Deed, and the property situated thereon, known as Lot 70, and all the furniture thereof,-on condition that she remain unmarried. In the event of her marrying, or in the event of her deceased, the land, property and furniture shall go to my two daughters, Ina Elaine .Jack and Gwendolyn Dear. In the event of their decease the land, property and furniture shall go in turn to my grand-daughter, Wallace McMaster, Carlita Jack, Oswald Jack, Wallace Dear, Brenda Dear, Glenroy Dear, and Olga Dear, in the event of the decease of each preceding party. On no condition are the land and Property to be sold.” The Issues [ II Does this provision In the will tail t()r uncertainty or alternatively because it offends against the principle which prohibits permanent restraints upon alienation of real property’) f2] The cardinal principle which governs the interpretation of wills IS that the aim IS to give effect to the mtention of the testator. The whole will IS to be considered along with any other relevant eVidence In ascertainmg that Intention. [31 The primary beneficiary of the real property and furniture contamed in Lot 70 al Grenville Street Kingstown is Vivian Jack the daughter of the deceased. In the event of her marrying. or in the event of her death the property goes to the other beneficiaries. I pause here to note that these phrases cannot be synonymous. ‘In the event” of her marrying must mean ‘should she marry’ .. [n the event” of her death could mean either’ should she die (before the testator) or when she dies-as obviously die she must. Fortunately as events have gone. nothing turns In this ambIguity as Vivian .lack is now deceast:d. So too are Ina Jack. Gwendolyn Dear and Wallace Mc Master. I am content to view Clause 6 as haVIng created a succt:ssion of life interests as follows: Vivian Jack (Deceased)

2.Ina Elaine Jack and Gwendolyn Dear (Deceased) 3 Wallace Mc Master ( Deceased)

4.Carlita .lack

5.Oswald Jack (Deceased)

6.Wallace Dear

7.Brenda Dear

8.Newlin Dear

9.Glenroy Dear

10.Olga Dear

10.Olga Dear Had this been the end of the provision little difficulty would have been posed but Clause 6 ends with the sentencet\On no condition are the land and property to be sold:Clearly this I~ a pnn lSlon which is void. It purports to prohibit the alienation of the property l()rever I have heen greatly assisted hy the submissIons of both counsel and the authorities to whIch I have been reterred, The ljuestlUl1 which now must be determmed IS whether this otTending provision can be removed from the will or whether the entire clause must tail, If the latter is the case then the gin fails and i~ to he deah with according to the rules of Intestate succession, If former Is the correct Interpretation then the gift can be saved. I consider that when the will IS read in its entirety that this sentence-hanging as it does on its own can be severed from the will. [61 What then is the effect of Clause 6′) I conclude that the Claimant is now the life tenant of the property After her death it will pass in turn to each of the beneticiaries who sun1ve her I7J Sir Henry tor the detendants suggests that upon the death of the ultimate lik tenant the property tails into residue. I do not agree. [81 Having removed the offendmg sentence from Clause 6 of the will I have regard tu section 31 of the wills Act Cap 384. Where any real estate is devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention appears by the will. 191 [ consider that the etTect or thIs prmlSlOn is to pass to the ultimate survlvmg beneticiary the fee simple in Lot 70. ~~l~············ MASTER