JOSEPHINE HENRY LOUISY et al v MARTHA LOUISY et al

l:! ~\ '~":". .( V Y'\"\_ . ~ ? . . ~ .: ~ ". . #02 1 .. ,-" ~' f~'" N ._ ' SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 ( Suit No. 743 of 1993 ~ '-.." BETWEEN:

1.JOSEPHINE HENRY LOUI3Y

2.MATTHEW HENRY LOUISY

3.VILNA HENRY LOUISY Plaintiffs and 1. MARTHA LOUISY as P.R. of Peter Matthew Henry Louisy 2. RAYMOND JOSEPH HENRY LOUISY Defendants ~r . D. Theodore for Plaint if fs ~ r . V. Coope r Q. C. for Defendants . 1 996: May 17; June 7 . J U D G MEN T t. MATTHEW J. 3y originating summons filed o n November 30, :993 ~he Plaintiffs s ought ~he i nterpretati on and conscructlon o f the Wills of their parents, He nry Clermont Louisy and Marie Edith Louisy and o ther -; I a ssociated r e lief. The summons was supported by an affidavit o f Plaintiff No . 1 sworn to an filed on the said November 30, 1993 . " There were s everal exhibits ac companylng the af fi davit a n d o c hers were tendered in evidence during ::he .::earing. There were the p r oba t es o f the Wills of the parents; a letter bv Peter Matthew ~ enry LOUlSY to wh l ch wa s ~ttac he d certai n statemencs o r accoun~s ; a hypothe car y obligation by Marie Edith LOUlSY and Peter ~ a tthew ...... :.r T ' ,.enry .:...,OUlSY; a de s ignaci on and ves t ing deed by Marie ~ d it h Louisy o f the immovable property passing ~nder the Will of her husba nd; a ~e ea of donat~on by the parencs co ~atthew ~enry ~o u isy ; ana a copy ::.; f a land regl scer cerc i f::'ca ce ::laming Pet e r ~ a cchew -,ouisy a s Executor of the Estate of Marie Edith Louisy as the registered owner of 52.0 hectares of land, parcel No. 0620B 11 located in the Registration Quarter of Laborie. ~ The Defendants who are also the c hildren o f Henry C~ermont Louisy and Marie Edith Louisy entered appearance on January :1 , 1994 and ?eter Mat+:llew Henry Louisy filed two affidavits in reply, che first c ontaining one paragraph filed on Jt.Lne 8 , 1994 and another one containing facts and legal arguments filed on July 5 , 19 95. 3y order o f the Court :nade on April 24, :996 !Tart ha ~oui sy was substituted for her husband, ?eter !Tatthew Henr y ~ouisy, who passed awa y since the proceedings were initiated. ':'h is matter after s everal '11onths o f unsuccessful negotiations between the Parties in order to arrive at a settlement c ame up for ::learing 0 :-1 May - -, - / , 1996. No v i v a voce evidence was caken and the s ubmissicns o f lear:-1ed C=~nsel are adequately reflected in what is perhaps \:rongly described as the notes of evidence. ':'hey are in submissions which f o r m D ~Y" '" Cl~~ o f the fi l e : act the notes of the :cecord. residuary estate The main issue is whether the or more particularly, the Saphyr estate, is to be shared between four o r five of the legitimate children o f Henry Clermont ~ouisy and Marie Edith Louisy. ~ earned Counsel for the Defendants at the beginning o f h lS submissions puts che macter succinctly when he said: "The basic question is which Will is dominant, Henry Clermont ' s will or !Tarie Edith's will". There is one paragraph of each Will which call s for ince r pretation. Henry Clermont' s Will was made on Marc h 16, 1 93 9. He d ied on March - , 1971. His Will ::lamed his wif e, \1arie Edith as the Sole Executrix . The Will was proDaced on ~uly 16, 1 97 : and registered on August 3, 1971 in Volume :25A 96425. ?aragraph 4 of the Will is 'i( ':;\>., a s follows: "Subject to the above legacy I devise and bequeath to my said wife the whole of my property real and personal ~ovable and i~movable of which I may die possessed hereby constituting ~ ~ said wife my sole universal legatee and devisee. out i n the event of ~y said wife predeceasing ~e or dying without disposing of all or a~y r f my said properties , it is ~y desire that my said properties or any of them sh~ll ~evert ~n equal shares and with the right of accretion and survi vorship among them to my legitimate children named (a ) Raymond ~0 seph Henry Louisy (b ) Josephine Henry Louisy (c ) Matthew Henry Louisy (d) Peter Matthew Henry Louisy (e ) Vilna Monica Henry Louisy and (f ) any other child or children that ~a y be :Corn o f my ~arriage with ~y said wife for which purpose ~y said legitimate children shall be deemed my universal l egatees and devisees." ~either side has argued that t here were any c t~er =~ ildren but the f ive who are Parties to this suit. Marie Edith Louisy made her will on September 2 6, 1972. She named Peter Matthew Henr y Louisy ~ h e sole Executor o f her Will . Marie died on Oct ober 17, 19 76. Her Will was probated on Augus t 17 , 1977 and r egistered six days l ater in Volume 130A No . 117423. Paragraph 5 of her Will i s as f ollows: "I give devise and bequeath unto the foll owing four only of my five lawful children (my son Burton having been adequately provided for :Cy my late aforesaid husband during ~y said husband's lifetime ) namely: (1 ) Raymond LOUlSY o f Castries aforesaid, shopkeeper 2 ) Raymonise Louisy of Castries aforesaid sto~e ~lerk (3 ) my executor 2eter Louisy aforesaid and (4 ) Vilna Louisy, student at present absent from the said State, all my property, ~ovable and immovable real and personal wheresoever situate and to whatsoever value the same may amount nereby constituting chern my universal :egatees and devisees." The Parties are agreed that Burton is Matthew Louisy; and that Raymonise is the said Josephine Henry So brief the issue is whether or not Matthew Henry entitled to a share in the Saphyr estate which e d not dispose of her lifetime, neit ~n nor whole. ~he ?leW of 1 Counsel for the Def s ~n snort is t e Edith took an absolute title under r 's Will and so he could deVLse residuary property to the four f her five " .l,oren. Towards the end of second fidavit f ?eter Matthew sy he said; sume that ~s his r s "Finally ~t is my that ::..n ~ -., of deceased, Henry Clermont Louisy, name :::t :..s my desire' should be construed as precatory and not mandatory as the case of Re Diggles ~888 39 Ch. 253 and therefore the wife Edith Louisy took way of an absolute gift. ~he view of learned Counsel for the Pia iffs is- t there was a subst_tution accordance with Article 861 f _he ~" ,-' "l ' , ' ,....,... " , ~~ :::..ve ~eglt e are entlt~eQ to tne ~es::.. estate comprising the Saphyr estate. Learned Counsel for Respondent rei on the ~ol authorities: LAMBE 'J. EAMES :::"871 6 Ch. App. :::0 ~../ ") "'. RE ADAMS - 884 27 Ch. D. 394; and RE DIGGLES - 888 Ch. D. 253. Lambe, L bequeathed +-" ~'-' his wife s fre Id house a~~ nls rsonal prope the whole "':0 at her disposal ~~ any way she may think best for the benefic of herself _ami II The Court ~Q _hat these words did not operate to create any trust, but - idow was entitled to SDose of :: rty ner as eased. -:-r-... _ =;;:::;" -liM1?"'-'-'" I n Adams, George Smith, the testator provided in his Will as f ollows: "I give devise and bequeath all my real and personal estate and effects whatsoever and wheresoever unto and to the ~ absolute use o f my wife, Harriet Smith, her executors, administrators and assigns in full c onfidence t hat s he wlll do whar i s right as to t he disposal thereof between my children, either in her lifetime or by Will after her decease. " The question was whether this was ,m absol ute gift , or whether the property was subj ect to a t rust in favour o f t he chi ldren. The CourL o f Appeal held that Lhe widow t ook absol utely. Cot t on L . J . s tated that the question before the Court was one of interpretation Lhe particular Will. He said: "The question before us .is whether upon t he t r u e construction o f the wi l l of George Smith he i mposed upon hi s wife Harriet a trust." I n Diggles, the testatrix gave al l her property , r eal and personal t o her daughter, "her heirs a nd a ssignsi a nd it i s my de s i re that s he a l l ows to my r elative and companion A. G. an annu i ty o f Pounds during her life, and that A.G. shall if she des i re it have use of such portions of my household furniture as may not be r equired by my daughter." The daughter and her husband were appoi nted executors. It was held t hat no t rust or obligat i on t o pa y t he annuity was imposed upon the daughter , but t he re was only a request to the daughter , not binding her in law , t o make that provision for A.G. Learned Counse l fo r the Plaintiffs referred t o part o f Artic l e 861 a s follows: "Fiduciary substitution is that i n which t he person receiving the thing i s charged to deliver i t t o another eit her a t his death or at some o t her t ime. Substitution takes effect by operation of the law at the time fixed upon, without the necessity of any actual delivery or other act on the part o f the person charged to deliver." ~ Learned Counsel for the Kespondents made what appears to be a pertinent submission when he said t hat since the ~aw of trusts in ~ ngland is now the law of St Lucia and since the construction of t estamentary dispositions is the same a s in substitutions the rules of trusts in England in t he construction of Wills aloe those to be applied in this matter and i n this context he referrec t o Article 916 o f t he Civil Code. ~ t hink he meant Article 916A which sought t o incorporate the law of trusts in Engl and into t he law of Saint ~ ucla. But t his provision had not t he effect of r epea ling Article 861 and paragraph 3 of Article 916A specifically states that the r ights, powers and duties of trustees and beneficiaries under a t rust in English l aw are subject to the pr ovisions of the Civil : ode. Learned Counsel for the ~laintiffs relied on t he following authorities: _. SHEARER v . HOGG, Supreme Court of Canada Vol . XVI , Page 492; 2. RE THOMSON' S ESTATE 1880 XVI Ch. 263. 3. DOE d. STEVENSON v. GLOVER L . J . C. P. 169 . ~ n Shearer, S . by hls Will gave all hi s property absolutely to hi s wife with a direction chat their children should be suitably maintained and educated by her . The fthll the n Drovided II that s hould my said wife die l eaving any of my said property or rights, i n her poss2sc icn or :1ot disposed of " upon he r s ald decease the same should be divided "among our said children" in the manner specif ied. Held, affirming the ~udgment of the :ourt o f Keview sitting at Montreal that this provision did not empower the wife to di spose of '~ ""-".~ t he residue at the time of her death by Will but had the effect of c reating a substitution de residuo in favour of the children. I t is necessary to analyse this case more c lose and to compa~ t he actual words used by the testator to those used by Henry Clermont Louisy. The learned Chief J ustice at Page 494 stated the exact words in Shearer's Will as follows: "And fina lly i t lS my desire , will and wish t:hat should my said wife die l eaving any of my said property or rights in her possession or not disposed o f , the s ame should be divided among our said children as follows : " So I do not think learned Counsel for the Defendants i s correct when he stated in the affidavit of Peter Matthew Henry Louisy the f ollowing: ''''lith the greatest reSDect. T must say that .,. cannot fin::::' .:.:..:y similarity between the ' words 'desire ' i n the Will of the Deceased and ' shall ' in the case of Shearer v . Forman" . . !J,.s seen above the word "desire" was used in Shearer ' s case and t here was no use o f the word "shall" . The word "should " was used which has a different connotation. The learned Chief Justice went on co state at: page 49 5 that "to hold that the widow had an absolute power o f disposition by will would be to defeat the clearly-expressed ob j ect: o f t he testator. " The ...: udgrr.en '- :)f Davies -r U . is even clearer . He stated at the beginning of his judgment: that "the whole quest:ion i s one o f the t estator's intention which is to be gathered not from anyone phrase o r sentence, but from the instrument read as a whole" . s t:aten :hat by his will Andrew Shearer devised and bequeathed all his property without exception of which he s hould di e oossessed or entitled unto his wife and following this absolute devise there were two paragraphs. effect of these two paragraphs my ew seem to cut down ~ake away from this absolute se and che learned thlS o say of one of the paragraphs: "HI=' first gives the prope to his wi ely chen impresses upon s a trust lifetlme maintenance, support and education of s ers". The other paragraph is s lar terms as cited f -ustice and referred to above. f ~ess persuasive authority is Re Thomson's estate. A testator s Will gave all his property to his widow "for the Cerm natural life to be disposed of as she may think proper for her own ~se and benefit according co the nature and quali reof, in ~ event of her c~~se, should there be nin~ he said property or any part thereof," he gave " or s ,_hereof" to certain persons. Id by the Court of Appeal t the widow no power to spose f che property by Will, Chat on her death it went to terior takers named che husband's will. James L.J. st at page 264: If there is one thing clearer chan another in the case, it is that the cestator intended sown 11, and of s wife, to that by whi the dest ion of s was ~o be determined." n ~oe d. Stevenson, A by his Will, gave a Id cenement unto my son G, to hold the same unto him and s heirs and assigns for ever; but in case my said son G shall happen to depart chis life thout leaving any ~ ssue of s body, lawfully t.en, chen ~iving, or being unto such issue, and he my sald son shall not have sposed and parted with interest and in and to said copyhold estate and premises, then and in such case, I se the same "messages and unto and to use llegitimate daughter A.S. and her heirs ass for Held that the limitation over to A.S. was t upon the of G without issue and thout having the property, A.S. was entitled to it in fee. Held, also l a sposition by G, by s 11, was not t f ..L..L, and that A.S. was entitl to t G i it to another person his Will. te frankly, apart from authori I I would have held that use f the word "desire" would have incl me to Vlew no rust was intended. all the cases cited v. was he latest l the only one decision in this c It S also based on the '- of and ~he of e~bsti~utions. This case in ance _8 -~cser ~c the one me. I shall low it. therefore take the ew - hat t fee hi of Clermont Louisy and Marie Edi sy are enti ~ to the that was left ermonc not Edith during her lifetime and s the state. llowing on that determination and in e with Article 654 t seq of the .l. r Matthew ~ouisy turn to the mass t donation rece s Darents he f~l~er's life time, it F. ~F he s to cake his one-fi of the residue. Will of Henry Clermont provided for accretion and survivorship among the legitimate children. The matter becomes relevant in a sense since Peter Matthew Henry Louisy has pas away. ';! Counsel for the Defendants submitted that accretion and survivorship could only occur if Peter Matthew Henry Louisy had no children. He cites in support Article 836 of the Ci vil Code which is as follows: ~ "Every testamentary disposition lapses if the person in whose favour it is made, or his cnildren, do :;.ot survive the testator." Counsel also relied on the decision of Manning J. in suit 19 of 19 52 Ma rie Egyptienne Alexine v . Ferdinand ~ecaine decided on March 23, 1953. As I understand the judgment the learned Judge distinguished between accretion and survivorship , the one occuring before the testator's death and the one occuring afte r the testator's death. In our case there was no accretion for all the children survived their father. The Article cited above would bc relevant if Peter '" -? ... .La. '-' ~le d before hi8 ~~rhQr and leaving children, the'l piE::s·u."lably the children would be entitled to his share under Article 836. I n the Alexine case Sdgar had died without: issue before the :.estator. His share lapsed and that was described as accretion. There was no provision fo r survivorship in the case. Let me cite pages 4/5 of the j udgment. "Mr . Mathurin, for the defendant urges that \ accretion ' in the c ase of Wills has a definite meaning and applies only to a lapse due to the death of a beneficiar y before the death of testator. It does not mean \ survi vorship' . As to the meaning o f \ accret ion' he re£el red me to Mignault 's Droit Civil Canadien Vol. 4. p .323 and 0 Ripert's Traite de Droit civil , Vol. 3 p.681, 682; and to Vincent v . Claude, Quevec Reporcs , p . 152. Mr. Compton agrees with che usual meaning o f \ accrec ion' to be derived from the authorities cited by Mr. Mathurin; but asserts t hat in this particular case it is clear that the testator meant something different. I am unable to agree with him." I" So on the strength of that decision cited by Mr. Cooper what we ha7e bere is survivorship which i s provided for in Clermont 's Wi~l In the Alexine case the testator only t ogether with accretion. provided for accretion. So strictly speaking according to the terms of the Will of Henry Clermont the share of Peter Matt hew Henry Louisy would pass to i ncrease the shares of the other four children but one of the heads of relief sought by the Plaintiffs was a declaration by Court t hat the said limitation of accretion and survivorship is capable o f being severed or being put an end to by deed with the mutual consent o f all the legitimate children. Al thoL.;.gh Peter Matthew Henry Louisy has passed away since the f il ing of the originating summons learned Counsel for the Plaintiffs has asked the Court to permit him t o share in the estate. He i s in effect conceding or agreeing t o the heirs of Peter Matthew Henry Louisy taking the share of the Deceased. accordingly grant the declaration in paragraph 3) of the originating summons. I n paragraph 4 of her Will Marie Edith Louisy stipulated that her children named as her beneficiaries should reimburse her executor , ~ eter Matthew Henry Louisv, for all his personal excenses he s~~ll nave lawfully made o r incurred in r espect o f her Will and her s uccession and in respect of the Will and Succession of her husband. ..• " .. . "-\'?, I n that connection attached. to a letter by Peter Matthew Henry Louisy to his brothers and sisters were some accounts which show t hat Peter Matthew Henry Louisy received a total sum of $97,023.63 a s i ncome from the estate from 1986 to 1992 but i n the s ame peri~ had expended $1,293 ,513 . 00 . By paragraph 17 of the affi~avit o f Josephine Henry Louisy she says t he beneficiaries are wiliing to pay the Executor all his proper personal expenses but his figures are exorbitant . unsatisfactory , grossly excessive and/ or improper. At paragraph 4 of the originating summons the ?laintiffs ask for certain relief in this r egard. In hi s response learned Counse l for the Defendants submitted at the hearing that he had discussions with learned Counse l for the Pla int iff s the previous day and he was of the view that the matter would not come up in Court and he s uggested that the Parties be asked to go and settle the ma tter ~ ,. ~- ....... ".," c _ >....J ..L ......... CJ 2e~ ·~I2. c e s s ince Peter i s ~nt jtle d to remuneration Earlier I made mention of the f ailure of the Parties to r esolve their dispute. There is no reason to believe that they c an now settle the financial aspect . The fact is that Peter Matt hew Henry Lou i sy put figures to the Court on a piece of paper but there are no r eceipts or documents to substantiate them. This is totally i nadequate and I re j ect the account or figures submitted by Peter Matthew Henry Louisy already referred to already referred to . = order Peter Matthew Henry Louisy or rather his Executrix who is now a Party to the action to: (a ) serve on each o f the ?artles, apart from hersel:, .:ind f il e in Court I a full , detailed and proper account vouched for by receipts and an a ff idavit of al l personal expenses she shall have lawfully made or incurred in respect of t he Will and succes s ion of s aid Marie Edith Louisy and in Succession Henry Clermont b) serve on each the Parties hereto, and file into Court a I, det led vouched aff t s in respect of ion of estate date the death of Marie Louisy up to t such account. (c) file the said accounts on or fore 30, 1996. further order the Executrix of Peter to execu"Ce not late than 31 f 1996 f a Vest Assent of estate in favour five 1 t e ermont Louisy and Marie Edith sy at expense. find that administration of the estates of sy and Marie Edith sy were diffi t strat not to ment the prrnr law ses as a re :. .: above. I think proper t accounts 1 settle what is to each of fic I make declarat st at ing summons. Counsel the Defendants made no submiss st for ition so I order Execut Peter Louisy and the Part to the act to on a surveyor to view and examine the Saphyr estate a to s itioning among persons entitled, costs ition to be in equal s. now come to a consideration of the hypothec, t "D". During s submissions learned Counsel for the Defendants stated: "On the question of the mortgage, no problem wi t They are both liable to half." :>" He did go on to question why Peter should be liable to more than half. That is explained by the fact that the other half is to be borne by the heirs of Marie Edith Louisy and Peter i s one of such heirs. J. ~ order that the amount of the mort gage de bt i s to be met by t he ~eir3 o f Peter Matthew Henry Louisy t o t he extent o f ha l f o f t he debt and the other half to be met by t he heirs o f YIarie Edith Louisy. Le arned Counsel fo r t he Pl a intiffs referr ed t o Articles 97 5, 977 a nd 978 during his s ubmission that Peter Ma tthew Henr y Loui s y i s to be regarded as a volunteer in the administration o f t he affairs o f t he Saphyr estate. I agree with l earned Counsel fo r the Defendants t hat all the Parties accepted Peter as manager o f Saphyr estate and under the provision o f Art i cle 978 it is my vi ew that when he has s ubmi t ted t he accounts referred to above , the Parties c an agree among themsp J vp,:,z '": 0 ., re i mbu rse i n all necessar/ :::: r '..:sefu l expenses " and ~pon their failure to agree the Court can make an appropriate order. The l ast t hing I want to r efer to i s the l and certif i cat e with t he r egistrat i on o f Peter Matthew Louisy as Executor o f t he Estate o f Marie Edith Louisy. It is clear that Peter i s no t registered as owner in his own right and that r egistration does not give hi m proprietorship o f Saphyr estate i n preference t o a ny o f t he other beneficiaries. There is here no c hallenge o f hi s personal e ntit l ement. Under t hat reg i strat i on at least f our o f the chi l dren i nclusive of Peter, are entit l ed. But the result o f my finding on =he main issue i s t hat =he registration becomes an e rror ~l. l aw ~n =hat I have he ld that from the time o f t he deat h o f Marie Edit h al l f i ve children and not on ly four were entit led to the Saphyr estate. ------------.- ----_._-- _ ":1 ... The costs of these proceedings are to be borne by t he r espective Parties·. ~ A. N. J . MATTHEW Puisne Judge ---- -- _ ..

l:! ~\ ‘~”:”. .( V Y'\"\_ . ~. ? . ~ SAINT LUCIA .: .. ,-” ~’ f~'" N ._ ‘ IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 743 of 1993 BETWEEN:

1.JOSEPHINE HENRY LOUI3Y

2.MATTHEW HENRY LOUISY

3.VILNA HENRY LOUISY and

1.MARTHA LOUISY as P.R. of Peter Matthew Henry Louisy

2.RAYMOND JOSEPH HENRY LOUISY ~ r . D. Theodore for Plaint iffs ~ r . V. Cooper Q. C. for Defendants . MATTHEW J. 1 996: May 17; June 7 . J U D G MEN T ~ “. . #02 1 Plaintiffs Defendants 3y originating summons filed on November 30, :993 ~he Plaintiffs s ought ~he i nterpretation and conscructlon o f the Wills of their parents, He nry Clermont Louisy and Marie Edith Louisy and o ther a ssociated r e lief. The summons was supported by an affidavit o f Plaintiff No . 1 sworn to an filed on the said November 30, 1993 . There were s everal e xhibits ac companylng the af fi davit a nd o c hers were tendered in evidence during ::he .::earing. There were the p r oba t es o f the Wills of the parents; a letter bv Peter Matthew ~ enry LOUlSY to wh l ch wa s ~ttac he d c ertai n statemencs o r accoun~s ; a hypothe car y obligation by Marie Edith LOUlSY and Peter ~ a tthew :.r ,.enry .T:…,OU l’ SY; a de s ignaci on and v es t ing de ed by Ma rie ~d it h Loui sy o f the immovable property passing ~nder the Will of her husba nd; a ~e ea of donat~on by the parencs co ~atthew ~enry ~o u isy ; ana a copy ::.; f a land regl scer c erc i f::’cace ::laming Pet e r ~ a cchew -,ouisy a s ( ~ ‘-..” t. -; I “ …… Executor of the Estate of Marie Edith Louisy as the registered owner of 52.0 hectares of land, parcel No. 0620B 11 located in the Registration Quarter of Laborie. ~ The Defendants who are also the c hildren o f Henry C~ermont Louisy and Marie Edith Louisy entered appearance on January :1 , 1994 and ?eter Mat+:llew Henry Louisy filed two affidavits in reply, che first c ontaining one paragraph filed on Jt.Lne 8 , 1994 and another one containing facts and legal arguments filed on July 5 , 19 95. 3y order o f the Court :nade on April 24, :996 !Tart ha ~oui sy was substituted for her husband, ?eter !Tatthew Henr y ~ouisy, who passed away since the proceedings were initiated. ‘:’his matter after s eve ral ’11onths o f unsuccessful negotiations between the Parties in order to arrive at a settlement came up for ::learing 0:-1 May — -, / , 1996. No v i va voce evidence was caken and the s ubmissicns o f le ar:-1ed C=~nsel are adequately reflected in what is perhaps :rongly described as the notes of evidence. ‘:’hey are in act the notes of the :cecord. The main issue is submissions whether the which f o r m D C~Yl”~’~” o f residuary e state the fi l e or more particularly, the Saphyr estate, is to be shared between four o r five of the legitimate children o f Henry Clermont ~ouisy and Marie Edith Louisy. ~ earned Counsel for the Defendants at the beginning o f h lS submissions puts che macter succinctly when he s aid: “The basic question is which Will is dominant, Henry Clermont ‘ s will or !Tarie Edith’s will”. There is one paragraph of each Will which call s for ince r pretation. Henry Clermont’ s Will was made on March 16, 1 93 9. He d ied on March – , 1971. His Will ::lamed his wif e, \1arie Edith as the Sole Executrix . The Will was proDaced on ~uly 16, 1 97 : and registered on August 3, 1971 in Volume :25A 96425. ?aragraph 4 of the Will is :2 ‘:;>., a s follows: “Subject to the above legacy I devise and bequeath to my said wife the whole of my property real and personal ~o vable and i~movable of which I may die possessed hereby constituting ~ ~ said wife my sole universal legatee and devisee. out i n the event of ~y said wife predeceasing ~e or dying without disposing of all or a~y r f my said properties , it is ~y desire that my said properties or any o f them sh~ll ~evert ~n equal shares and with the right of accre tion and survi vorship among them to my legitimate children named (a ) Raymond ~0 seph Henry Louisy (b ) Josephine Henry Louisy (c ) Matthew Henry Louisy (d) Peter Matthew Henry Louisy (e ) Vilna Monica Henry Louisy and ( f ) any other child or children that ~a y be :Corn o f my ~arriage with ~y said wife for which purpose ~y said legitimate children shall be deemed my universal l egatees and devisees.” ~ either side has argued that t here were any c t~er =~ ildren but the f ive who are Parties to this suit. Marie Edith Louisy made her will on September 2 6, 1972. She named Peter Matthew Henr y Louisy ~ h e sole Executor o f her Will . Marie died on Oc t ober 17, 1976. Her Will was probated on Augus t 17 , 1977 and r egistered six days l ater in Volume 130A No . 117423. Paragraph 5 of her Will i s as f ollows: “I give devise and bequeath unto the foll owing four only o f my five lawful c hildren (my son Burton having been adequately provided for :Cy my late aforesaid husband during ~y said husband’s lifetime ) namely: (1 ) Raymond LOUlSY o f Castries aforesaid, shopkeeper 2 ) Raymonise Louisy o f Castries aforesaid sto~e ~lerk (3 ) my executor 2eter Louisy aforesaid and (4 ) Vilna Louisy, student at present absent from the said State, all my property, ~ovable and immovable real and personal wheresoever situate and to whatsoever value the same may amount nereby constituting chern my universal :egatees and devisees.” ‘i( The Parties are agreed that Burton is Matthew Louisy; and that Raymonise is the said Josephine Henry So brief the issue is whether or not Matthew Henry entitled to a share in the Saphyr estate which e d not dispose of her lifetime, neit ~n nor whole. ~he ?leW of 1 Counsel for the Def s ~n snort is t e Edith took an absolute title under r ‘s Will and so he could deVLse residuary property to the four f her five .1 l,”o ren. Towards the end of second fidavit f ?eter Matthew sy he said; sume that ~s his r s “Finally ~t is my that ::..n ~ -., of deceased, Henry Clermont Louisy, name :::t :..s my desire’ should be construed as precatory and not mandatory as the case of Re Diggles ~888 39 Ch. 253 and therefore the wife Edith Louisy took way of an absolute gift. ~he view of learned Counsel for the Pia iffs is- t there was a subst_tution accordance with Article 861 f _he ~” ,-‘ “l ‘ , ‘ ,….,… ” , ~~ :::..ve ~eglt e are entlt~eQ to tne ~es::.. estate comprising the Saphyr estate. Learned Counsel for Respondent rei on the ~ol authorities: LAMBE ‘J. EAMES :::”871 6 Ch. App. :::0 ~../ “) “‘. RE ADAMS – 884 27 Ch. D. 394; and RE DIGGLES – 888 39 Ch. D. 253. Lambe, L bequeathed +-” ~’-‘ his wife s fre Id house a~~ nls rsonal prope the whole “‘:0 at her disposal ~~ any way she may think best for the benefic of herself _ami II The Court ~Q _hat these words did not operate to create any trust, but – idow was entitled to SDose of :: rty ner as eased. –! -:-r-… _ =;;:::;” -liM1?”‘-‘ -‘” I n Adams, George Smith, the testator provided in his Will as f ollows: “I give devise and bequeath all my real and personal estate and effects whatsoever and wheresoever unto and to the ~ absolute use o f my wife, Harriet Smith, her executors, administrators and assigns in full c onfidence t hat s he wlll do whar i s right as to t he disposal thereof between my c hildren, either in her lifetime o r by Will after her decease. ” The question was whether this was ,m absol ute gi ft , or whether the property was subj ect to a t rust in favour o f t he chi ldren. The CourL o f Appeal held that Lhe widow t ook absol u te ly. Cot t on L . J . s tated that the question before the Court was one of interpretation Lhe particular Will. He said: “The question before u s .is whether upon t he t r ue construction o f the wi l l of George Smith he i mposed upon hi s wife Harriet a trust.” I n Diggles, the testatrix gave al l her property , r eal and personal t o her daughter, “her heirs and a ssignsi and it i s my de s i re that s he a l l ows to my r elative and companion A. G. an annu i ty o f 25 Pounds during her life, and that A.G. shall if she des i re it have use of such portions of my household furniture as may not be r equired by my daughter.” The daughter and her husband were a ppoi nted executors. It was held t hat no t rust o r obligat i on t o pa y t he annuity was imposed upon the daugh ter , but t h e re was only a request to the daughter , not binding her in law , t o make that provision for A.G. Learned Counse l fo r the Plaintiffs referred t o part o f Artic l e 861 a s fo llows: “Fiduciary substitution is that i n which t he person receiving the thing i s charged to deliver i t t o another eit her a t his death or at some o t her t ime. Substitution takes effect by operation of the law at the time fixed upon, without the necessity of any actual delivery or other act on the part o f the person charged to deliver.” ~ Learned Counsel for the Kespondents made what appears to be a pertinent submission when he said t hat since the ~aw of trusts in ~ ngland is now the law o f St Lucia and since the construction of t estamentary dispositions is the same a s in substitutions the rules o f trusts in England in t he construction of Wills aloe those to be applied in this matter and i n this context he referrec t o Article 916 o f t he Civil Code. ~ t hink he meant Article 916A which sought t o incorporate the law of trusts in Engl and into t he law o f Saint ~ ucla. But t his provision had not t he effect of r epea ling Article 861 and paragraph 3 o f Article 916A specifically states that the r ights, powers and duties of trustees and beneficiaries under a t rust in English l aw are subject to the p r ovisions of the Civil ode. Learned Counsel for the ~laintiffs relied on t he following authorities: _. SHEARER v . HOGG, Supreme Court o f Canada Vol . XVI , Page 492;

2.RE THOMSON’ S ESTATE 1880 XVI Ch. 263.

3.DOE d. STEVENSON v. GLOVER 1845 14 L . J . C. P. 169 . ~ n Shearer, S . by hls Will gave all hi s property absolutely to hi s wife with a direction chat their children should be suitably maintained and educated by her . The fthll then Drovided II that s hould my said wife die l eaving any of my said property or rights, i n her poss2sc icn or :1ot disposed of ” upon he r sald decease the same should be divided “among our said children” in the manner s pecif ied. He ld, affirming the ~udgm ent o f the :ourt o f Keview sitting at Montreal that this provision did not empower the wife to dispose of c ‘) ‘~ “”-“.~ t he residue at the time of her death by Will but had the effect of c reating a substitution de residuo in favour of the children. I t is necessary to analyse this case more c lose and to compa~ t he actual words used by the testator to those used by Henry Clermont Louisy. The learned Chief J ustice at Page 494 stated the exact words in Shearer’s Will as follows: “And fina lly i t lS my desire , will and wish t:hat should my said wife die l eaving any of my said property o r rights in her possession o r not disposed o f , the s ame should be divided among our said children as follows : ” So I do not think learned Counsel for the Defendants i s correct when he stated in the affidavit of Peter Matthew Henry Louisy the f ollowing: ””lith the greatest reSDect. T must say that .,. cannot fin::::’ .:.:..:y similarity between the ‘ words ‘desire ‘ i n the Will of the Deceased and ‘ shall ‘ in the case of Shearer v . Forman” . .!J ,.s seen above the word “desire” was used in Shearer ‘ s case and t here was no use o f the word “shall” . The word “should ” was used which has a different connotation. The learned Chief Justice went on co state at: page 49 5 that “to hold that the widow had an absolute power o f disposition by will would be to defeat the clearly-expressed ob j ect: o f t he test ator. ” The …: udgrr.en ‘- :)f Davies -r U . is even clearer . He stated at the beginning of his judgment: that “the whole quest:ion i s one o f the t estator’s intention which is to be gathered not from anyone phrase o r sentence, but from the instrument read as a whole” . He s t:aten :hat by his will Andrew Shearer devised and bequeathed all his property without exception of which he s hould di e oossessed or entitled unto his wife and following this absolute devise there were two paragraphs. effect of these two paragraphs my ew seem to cut down ~ake away from this absolute se and che learned thlS o say of one of the paragraphs: “HI=’ first gives the prope to his wi ely chen impresses upon s a trust lifetlme maintenance, support and education of s ers”. The other paragraph is s lar terms as cited f -ustice and referred to above. f ~ess persuasive authority is Re Thomson’s estate. A testator s Will gave all his property to his widow “for the Cerm natural life to be disposed of as she may think proper for her own ~se and benefit according co the nature and quali reof, in ~ event of her c~~se, should there be nin~ he said property or any part thereof,” he gave ” or s , hereof” to certain persons. Id by the Court of Appeal t the widow no power to spose f che property by Will, Chat on her death it went to terior takers named che husband’s will. James L.J. st at page 264: If there is one thing clearer chan another in the case, it is that the cestator intended sown 11, and of s wife, to that by whi the dest ion of s was ~o be determined.” n ~oe d. Stevenson, A by his Will, gave a Id cenement unto my son G, to hold the same unto him and s heirs and assigns for ever; but in case my said son G shall happen to depart chis life thout leaving any ~ ssue of s body, lawfully t.en, chen ~iving, or being unto such issue, and he my sald son shall not have g sposed and parted with interest and in and to said copyhold estate and premises, then and in such case, I se the same “messages and unto and to use llegitimate daughter A.S. and her heirs ass for Held that the limitation over to A.S. was t upon the of G without issue and thout having the property, A.S. was entitled to it in fee. Held, also l a sposition by G, by s 11, was not t f ..L..L, and that A.S. was entitl to t G i it to another person his Will. te frankly, apart from authori I I would have held that use f the word “desire” would have incl me to Vlew no rust was intended. all the cases cited v. was he latest l the only one decision in this c It S also based on the ‘- of and ~he of e~bsti~utions. This case in ance _8 -~cser ~c the one me. I shall low it. therefore take the ew – hat t fee hi of Clermont Louisy and Marie Edi sy are enti ~ to the that was left ermonc not Edith during her lifetime and s the state. llowing on that determination and in e with Article 654 t seq of the .l. r Matthew ~ouisy turn to the mass t donation rece s Darents he f~l~er’s life time, it F. ~F he s to cake his one-fi of the residue. Will of Henry Clermont provided for accretion and survivorship among the legitimate children. The matter becomes relevant in a sense since Peter Matthew Henry Louisy has pas away. ‘;! Counsel for the Defendants submitted that accretion and survivorship could only occur if Peter Matthew Henry Louisy had no c hildren. He cites in support Article 836 of the Ci vil Code which is as follows: ~ “Every testamentary disposition lapses if the person in whose favour it is made, or his c nildren, do :;.ot survive the testator.” Counsel also relied on the decision of Manning J. in suit 19 of 1952 Ma rie Egyptienne Alexine v . Ferdinand ~ecaine decided on March 23, 1953. As I understand the judgment the learned Judge distinguished between accretion and survivorship , the one occuring before the testator’s death and the one occuring afte r the testator’s death. In our case there was no accretion for all the children survived their father. The Article cited above would bc relevant if Peter ‘…” .L-a. ?’-‘ ~led before hi8 ~~rhQr and leaving children, the’l piE::s·u.”lably the children would be entitled to his share under Article 836. I n the Alexine case Sdgar had died without: issue before the :.estator. His share lapsed and that was described as accretion. There was no provision fo r survivorship in the case. Let me cite pages 4/5 of the j udgment. “Mr . Mathurin, for the defendant urges that \ accretion ‘ in the case of Wills has a definite meaning and applies only to a lapse due to the death of a benefi ciar y before the death of testator. It does not mean \ survi vorship’ . As to the meaning o f \ accret ion’ he re£el red me to Mignault ‘s Droit Civil Canadien Vol. 4. p .323 and 0 Ripert’s Traite de Droit civil , Vol. 3 p.681, 682; and to Vincent v . Claude, Quevec Reporcs , p . 152. Mr. Compton agrees with che usual meaning o f \ accrec ion’ to be derived from the authorities cited by Mr. Mathurin; but asserts t hat in this particular case it is clear that the testator meant something different. I am unable to agree with him.” I” So on the strength of that decision cited by Mr. Cooper what we ha7e bere is survivorship which i s provided for in Clermont ‘s Wi~l t ogether with accretion. provided for accretion. In the Alexine case the testator only So strictly speaking according to the terms of the Will of Henry Clermont the share of Peter Matt hew Henry Louisy would pass to i ncrease the shares of the other four children but one of the heads o f relief sought by the Plaintiffs was a declaration by Court t hat the said limitation of accretion and survivorship is capable o f being severed or being put an end to by deed with the mutual consent o f all the legitimate children. Al thoL.;.gh Peter Matthew Henry Louisy has passed away since the f iling of the originating summons learned Counsel for the Pl aintiffs has asked the Court to permit him t o share in the e state. He i s in effect conceding or agreeing t o the heirs o f Peter Matthew Henry Louisy taking the share of the Deceased. accordingly grant the declaration in paragraph originating summons. 3) of the In paragraph 4 of her Will Marie Edith Louisy stipulated that her children named as her beneficiaries should reimburse her executor , ~ eter Matthew Henry Louisv, for all his personal excenses he s~~ll nave lawfully made o r incurred in r espect o f her Will and her s uccession and in respect o f the Will and Succession of her husband. ..• ” …. “. “-\’?, In that connection attached. to a letter by Peter Matthew Henry Louisy to his brothers and sisters were some accounts which show t hat Peter Matthew Henry Louisy received a total sum of $97,023.63 a s i ncome from the estate from 1986 to 1992 but i n the s ame peri~ had expended $1,293 ,513 . 00 . By paragraph 17 of the affi~avit o f Josephine Henry Louisy she says t he beneficiaries are wiliing to pay the Executor all his proper personal expenses but his figures are exorbitant . unsati sfactory , grossly excessive and/ or improper. At paragraph 4 o f the originating summons the ?laintiffs ask for certain relief in this r egard. In hi s response learned Counse l for the Defendants submitted at the hearing that he had discussions with learned Counse l for the Pla int iffs the p revious d ay and he was o f the view that the matter would not come up in Court and he s uggested that the Parties be asked to go and settle the ma tter s ince Peter i s ~nt jtle d to remuneration ~ ,. ~ ->….J …..L… . .”….,..”… CcJ 2e~·~I2. c e s Earlier I made mention o f the f ailure of the Parties to r esolve their d ispute. There is no reason to be lieve that they can now s ettle the financial aspect . The fact is that Peter Matt hew Henry Lou i sy put figures to the Court on a piece o f paper but there are no r eceipts or documents to substantiate them. This is totally i nadequate and I re j ect the account or figures submitted by Peter Matthew Henry Louisy already referred to already referred to . = order Peter Matthew Henry Louisy or rather his Executrix who is now a Party to the action to: (a ) serve on each o f the ?artles, apart from hersel:, .:ind f ile in Court I a fu ll , detailed and proper account vouched for by receipts and an a ff idavit of al l personal expenses she shall have lawfully made or incurred in respect o f t he Will and succes s ion of t.he s aid Marie ….:.. “:::’:’ ._ ~’ ;:,~:-. :,~~,:,~,~ .. -, ~~’ ,~,v .. – .. . -,:-..h “‘. …..- ,.,..”¥.’.:. . ,.. ….’ ,. .. “~ .. _, Edith Louisy and in Succession Henry Clermont b) serve on each the Parties hereto, and file into Court a I, det led vouched aff t s in respect of ion of estate date the death of Marie Louisy up to t such account. (c) file the said accounts on or fore 30, 1996. further order the Executrix of Peter to execu”Ce not late than 31 f 1996 f a Vest Assent of estate in favour five 1 t e ermont Louisy and Marie Edith sy at expense. find that administration of the estates of sy and Marie Edith sy were diffi t strat not to ment the prrnr law ses as a re :. .: above. I think proper t accounts 1 settle what is to each of fic I make declarat st at ing summons. Counsel the Defendants made no submiss st for ition so I order Execut Peter Louisy and the Part to the act to on a surveyor to view and examine the Saphyr estate a to s itioning among persons entitled, costs ition to be in equal s. now come to a consideration of the hypothec, t “D”. During s submissions learned Counsel for the Defendants stated: “On the question of the mortgage, no problem wi t They are both liable to half.” . – .~,~,,~~–,- ttllI!iJiMiiiii$”ji$llWii /Vi :>” He did go on to question why Peter should be liable to more than half. That is explained by the fact that the other half is to be borne by the heirs of Marie Edith Louisy and Peter i s one of such heirs. J. ~ order that the amount of the mort gage d e b t i s to be met by t he ~ eir3 o f Peter Matthew Henry Louisy t o t he extent o f ha l f o f t he debt and the other half to be met by t he heirs o f YIarie Edith Louisy. Le arned Counsel fo r t he Pl a intiffs referr e d t o Arti cles 97 5, 977 a nd 978 during his s ubmission that Peter Ma tthew Henr y Loui s y i s to be regarded as a volunteer in the administration o f t he affairs o f t he Saphyr estate. I agree with l earned Counsel fo r the Defendants t hat all the Parties accepted Peter as manager o f Saphyr estate and under the provision o f Art i cle 978 it is my view that when he has s ubmit ted t he accounts referred to above , the Parties can agree among themsp J vp,:,z ‘”:0 ., re i mbu rse i n all necessar/ :::: r ‘..:sefu l expenses ” and ~pon their failure to agree the Court can make an appropriate order. The l ast t hing I want to r efer to i s the l and c ert if i c ate with t he r egistrat i on o f Peter Matthew Louisy as Executor o f t he Estate o f Marie Edith Louisy. It is clear that Peter i s no t registered as owner in his own right and that r egistration does not give h i m proprietorship o f Saphyr estate i n preference t o a ny o f t he other beneficiaries. There is here no c ha llenge o f hi s personal e n tit l ement. Under t hat reg i strat i on at least f our o f the chi l dren i nclusive of Peter, are entit l ed. But the result o f my finding on =he main issue i s t hat =he registration becomes an e rror ~l. l aw ~n =hat I have he ld that from the time o f t he death o f Marie Edith al l f i ve children and not only four were ent it led to the Saphyr estate. l4 ————-.- ~-~–.. -.-.——-.-.——- — —- . –_ …. – “”‘ – ‘~'”‘ ””:’. ,.,,;..’:.::.~< ~i~~’:’..:~’!:~.:.:::..:. :..::~.”.:::.~:;~:.::.:”.’, ~ _ ,”.:4(:’.~:::~~~””~ ‘ ~ “”‘rY~ .~!0<“->.~},.,k’_ · ‘ · … “:1 The costs of these proceedings are to be borne by t he r espective Parties·. —- —_ ……… -· ‘~:t..-·. r . • ,~. ..- :–.., ~, ~ ~. ~.”’~ .. ‘ .,… ‘” ‘ I~ ” .Or;-, A. N. J . MATTHEW Puisne Judge ~ .. -~’II’W< ” ~ ~,,-‘I;.’r.~~. .~ • •• ‘ .” ‘ ‘ ;’: … ~~,.,..:.’f……. > ‘ . , .~.:.,”-,. .. ~~::o._~..,…,….,,\o .• p’~~