Barclay v Barclay
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE MEGAW |
| Judgment Date | 27 May 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0527-2 |
| Date | 27 May 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0527-2
The Master of the Rolls
(Lord Denning),
Lord Justice Edmund Davies,
and
Lord Justice Megaw.
In The Supreme Court of Judicature
Court of Appeal
From: Judge Buckee, (Southend County Court)
MR R.A. HENDERSON (instructed by Messrs. Dale & Newbery, W.S) appeared on behalf of the Appellant (Plaintiff).
MR G.W. CHEYNE (instructed by Messrs. Wiseman & Greenman, E.6) appeared on behalf of the Respondent (Defendant).
On 13th August, 1927, Mrs Amy Mary Barclay, the wife of Mr Andrew John Barclay, bought a bungalow called "Rosecot", Hilltop Avenue, Hullbridge, Essex. It was her own property. She and her husband had three sons, charles, Allan and Frank. Twenty-three years later, on 14th September, 1950, Mrs Amy Barclay died without making a Will. So herproperty went to her husband, Mr Andrew Barclay. But he did not take out any letters of administration, so his title was not perfected. Yet he lived on in the bungalow and treated it as belonging to him.
On 5th September, 1953, Mr Andrew Barclay made a will. By this time his own Charles had died, leaving a widow. His son Frank had married and was living with his wife Winifred. They were living at Ealing. His son Allan had married but was separated from his wife. Allan had come back to live with his father at the bungalow "Rosecot", By his Will, which was made in September, 1953, Mr Andrew Barclay left his property to be divided in five equal shares to his surviving sons and daughters-in-law, namely, Charles's widow, Allan and his wife, and Frank and his wife. He made a homemade Will on a printed form:
"I appoint Frank" - that is his youngest son - to be the Executor and Trustee of this my Will", and he said: "I give and bequeath to my youngest son… my Grandfather Clock".
Then there were these important dispositions about the bungalow:
"I direct… my bungalow 'Rosecot' and everything else I possess to be sold by my executor and the proceeds divided as to one-fifth to the widow of my late son Charles… one-fifth to my son Frank… one-fifth to Winifred… wife of Frank… one-fifth to my son Allen… of 'Rosecot'… one-fifth to… Elsie… (legal wife of…Allan)".
On 24th August 1954, Mr Andrew Barclay died. Soon afterwards, on 10th November, 1954, Frank took out letters of administration to his mother's estate, but he did nothing more about it, and Allan stayed on in the bungalow.
Ten years later, on 23rd September, 1964, Frank died, leaving his widow Winifred the only person entitled to his estate. So she became entitled to his one-fifth as well as her own, making two-fifths altogether. Next year, on 28th February, 1965, her solicitors gave notice to Allan to vacate the bungalow, but he did not go. In 1956 she took out lettersof administration to the estates of both old Mr and Mrs Barclay. It is admitted that Winifred, on taking out those letters of administration, acquired the legal title to the bungalow. She desired to sell the bungalow and divide the proceeds in accordance with the will. She wanted to sell with vacant possession. So she brought an action against Allan for possession and for damages for use and occupation. He put in a Defence in which he said: "At all material times the Defendant has occupied and continues to occupy the said premises as tenant in common thereof pursuant to the terms of the said Will". He also raised the Statute of Limitations.
The County Court Judge felt himself bound by the decision in this Court of Bull v. Bull (1955, 1 Q.B., 234) to hold that Allan Barclay was an equitable tenant in common of the bungalow and could not be turned out by this action for possession. Mrs Winifred Barclay appeals to this Court.
The facts of Bull v. Bull were these: A mother and son together bought a house. The legal title was taken in the son's own name. Mother and son put up the money together, the son providing most of it. It was intended that the house should be a home for both of them. Four years later the son married and brought his wife there. The mother and daughter-in-law did not get on. The son gave his mother notice to go. This Court held that mother and son were equitable tenants in common of the house. The son had no right to turn his mother out, because she had an equitable interest in the land which entitled her to remain. It could not be sold with vacant possession unless she agreed to it. If she unreasonably refused, he could go to the Court under sec.30 of the 1925 Act and obtain an order for sale, and in aid of it the Court could order the mother to go. In that case there was no express trust. The house was not expressed to be conveyed on trust for mother and son in undivided shares. Yet the Court implied a trust so as to give effect to the intention of theparties. The son held the legal title on trust for himself and his mother: just as a husband often holds the matrimonial home on trust for himself and his wife. The trust was a trust for sale - see sec.36(4) of the Settled Land Act, 1925, with a power to postpone the sale: see sec.25(1) of the Law of Property Act, 1925.
In this present case there was an express trust for sale; and an implied power to postpone the sale: see sec.25(1). That makes this case look, at first sight, like Bull v. Bull. But I think it is quite distinguishable. In Bull v. Bull the prime object of the trust was that the parties...
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