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Baldwin King and Hariette Richardson v Gershon Robertson

Judgment Cited authorities 4 Cited in 4 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeLord Sumption,Lord Mance,Lord Hughes,Lord Reed,Lord Kerr
Judgment Date27 October 2014
Neutral Citation[2014] UKPC 34
Date27 October 2014
Docket NumberAppeal No 0038 of 2011
CourtPrivy Council
Categories

[2014] UKPC 34

Privy Council

From the Eastern Caribbean Court of Appeal (St Vincent and the Grenadines)

Before

Lord Mance

Lord Kerr

Lord Sumption

Lord Reed

Lord Hughes

Appeal No 0038 of 2011

Baldwin King and Hariette Richardson
(Appellants)
and
Gershon Robertson
(Respondent)

Appellants

R Andrew Cummings QC A Anique Cummings (Instructed by Simons Muirhead & Burton)

Respondent

Kevin Pettican QC (Instructed by Harding Mitchell Solicitors)

Heard on 24 June 2014

Lord Hughes

(with whom Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree)

1

This appeal arises out of a disputed claim to land in Little London, Evesham in St Vincent and the Grenadines. In December 2004 the land was occupied as to part by the defendant Baldwin King and as to the remainder by the defendant Harriet Richardson. The claimant, Gershon Robertson ("Gershon") brought an action in that month claiming the land and asserting that neither Mr King nor Miss Richardson had any title to the parcels of it which they occupied. The dispute raises questions relating to a suggested entail and to adverse possession.

2

Gershon's claim to an interest in the whole of the land derives from the will of William Robertson ("William"), who died in either 1856 or 1857. Gershon's case is that by that will, William created an entail in the land which was still effective 150 or more years later and that he, as a great great great grandson of William, was one of a large number of people entitled to a share in it.

3

Mr King's claim to the land derives from his having purchased it in March 1996 from the executors of one Edward Albert Robertson ("Edward"). He had therefore not been in occupation himself for 12 years before Gershon's action was brought in 2004, and so his case depended on Edward or his executors having had good title to pass to him. Miss Richardson is a sub-purchaser from Mr King and so her case stands or falls with his.

4

The trial judge dismissed Gershon's claim, holding that by the time Mr King purchased the land his vendors, the estate of Edward, had acquired a good possessory title, which they had successfully passed to Mr King. The Court of Appeal reversed that decision on the grounds that under the Limitation Act 1988 there could be no adverse possession as between beneficiaries of the same trust, and hence neither Edward nor his executors had acquired a title which they could pass to Mr King. This is the appeal of Mr King and Miss Richardson from that appeal decision.

William's Will
5

The known history of the disputed land does not go back beyond William's will of 1856. The case has been conducted throughout on the basis that he died seised of the disputed land in fee simple. On its face, his will set out to leave a life interest in the land to his widow, Catherine, and thereafter to leave the land to his four named children, and after them to five named grandchildren. He died in 1857, about a year after making the will. Its relevant parts read as follows:

"I give and bequeath unto my beloved wife Catherine all the residue of my property both real and personal for her lifetime, and it is my will that after the death of my said wife Catherine the said residues…. to devolve unto my four children (namely) John, William, Maryann and Elizabeth Robertson….

…it is also my wish that should it so happen that the above mentioned four children die and after their deaths the said property to devolve entirely unto my grandchildren, namely Robert Alexander Robertson, Caroline Medica, Charles Robert Sinclair, William Sinclair and Louise Ann Robertson all of them respectively are the progeny of my aforementioned children….

…It is also my earnest and anxious wish and desire that my said children as aforesaid shall only have possess and enjoy the said property and residues only for the term of their natural lives and after their deaths the said property and residues to devolve entirely unto my aforementioned grandchildren for their heirs and assigns forever in fee tail."

1857–1947
6

There was no direct evidence of the actions of any of William's four named children, nor of those of his five named grandchildren. Nor is it known which of the children of William was the parent of which of his named grandchildren. It is however clear that of those grandchildren one, named Robert Alexander, himself had a son, Edward Albert ("Edward"), born in 1881. Edward married Adriana and himself died in 1947, having left a will which figures large in the present dispute. That will refers to a brother of Edward's called Clement. Meanwhile, evidence given by Gershon, and supported by some birth certificates, suggested that Robert Alexander also had at least two other children, of whom one was Berthold, born in 1886. Berthold was shown to be Gershon's grandfather, Gershon having been born to Berthhold's son Adolphus in 1942. Thus, Edward and Berthold were brothers and both were the great grandsons of William.

Edward's will and thereafter
7

Edward made a will dated 1 September 1947, and seems to have died shortly afterwards. In his will he asserted that he was the freehold owner of the disputed land, and he purported to dispose of it as such. His will recited the assertion that the disputed land had devolved upon him as the heir at law of William. He went on to grant a life interest in it to his wife Adriana, and to provide that thereafter it should pass to four named grandchildren, whom he described as resident in Trinidad. There was provision for a gift over to three nephews (sons of his brother Clement) if the gift to his grandchildren failed.

8

Although he thus described himself as William's "heir at law", it is clear that Edward cannot have inherited the fee simple in the disputed land from William in that capacity. Even if he was the eldest son of the eldest son of the William's eldest son (which is not known), William's will did not purport to devise the disputed land to such an heir. It purported to leave the land to his grandchildren "for their heirs and assigns forever in fee tail". The cases of both sides to this appeal have been presented to all three courts on the basis that this created some form of co-ownership amongst the grandchildren, and thereafter amongst their successors. There are in fact considerable difficulties about the proposition that William's will created a valid entail. First it is difficult to envisage an entail in which there are multiple co-tenants for separate lives, each of whom is succeeded by all his or her issue. Second, the terms of the will, in speaking of a devise of the land to the grandchildren "for their heirs and assigns forever in fee tail" is arguably internally inconsistent. If there is a valid entail, the tenant for life for the time being cannot assign the land, but at best his life interest. Nevertheless, it has never been suggested that the will should be read as creating a...

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