James v Williams

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE PRESIDENT,LORD JUSTICE ALDOUS,LORD JUSTICE SWINTON THOMAS
Judgment Date08 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0308-19
Date08 March 1999
Docket NumberCHANF 97/1473/3

[1999] EWCA Civ J0308-19

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

TRURO DISTRICT REGISTRY

(HIS HONOUR JUDGE ANTHONY THOMPSON QC)

Royal Courts of Justice

Strand, London WC2

Before:

The President

(Sir Stephen Brown)

Lord Justice Swinton Thomas

Lord Justice Aldous

CHANF 97/1473/3

Mary James
Plaintiff/Appellant
and
Edith Olga Williams
Defendant/Respondent

Mr Hugh Parker (Instructed by Pool Purchas & Stokes 37 Morrab Rd., Penzance, Cornwall) appeared on behalf of the Appellant

David Ainger (Instructed by Cornish Birtill, 8 Parade St, Penzance, Cornwall —london Agents, Blake Lapthorn) appeared on behalf of the Respondent

THE PRESIDENT
1

I will ask Aldous LJ to give the first judgment.

LORD JUSTICE ALDOUS
2

The plaintiff, Mrs Mary James, appeals against the order of His Honour Judge Anthony Thomson QC sitting as a judge of the High Court on 1 October 1997 which dismissed the plaintiff's claim that she was entitled to a third share in a property known as 2 Rose Cottages, Relubbus, Penzance in Cornwall.

3

2 Rose Cottages was the family home of William John Warren and his wife Violet for their married life. I will refer to them as the grandfather and the grandmother. They had three children, Thirza born in 1927, Mary the plaintiff and William Junior born in 1936. The defendant, Edith Williams, born in 1955, is the only daughter of Thirza.

4

In January 1950 the plaintiff ceased to reside at 2 Rose Cottages and in 1951 she married and went to live in the St Ives area. She visited her parents from time to time and spoke to her mother on the telephone. On 1 January 1953 the grandfather purchased the freehold of 2 Rose Cottages for £100 and from then until his death, on 15 February 1971, he lived there with the grandmother, William Junior, Thirza and her daughter.

5

The grandfather died intestate. Apart from personal items, his sole asset was 2 Rose Cottages which was worth at that time about £8,000. It followed that the beneficial interest passed to the grandmother, but she took no steps to take out letters of administration.

6

The grandmother died intestate on 2 February 1972. The consequence of that intestacy was that by Sections 46 and 47 of the Administration of Estates Act 1925, her residuary estate was to be held on statutory trust for her three adult children. Again, no attempt was made by anyone to take out letters of administration. Her only asset of any significance was 2 Rose Cottages.

7

Following the death of the grandmother, it was made clear to the plaintiff by William Junior and Thirza that she was unwelcome at 2 Rose Cottages and thereafter she became estranged from her brother and sister. From then on William Junior and possibly, Thirza behaved as if 2 Rose Cottages belonged to William Junior. The property was or became in a very poor state of repair. There was no electricity and no bath and in 1985 the roof fell in which had the result that the occupants had to move into a caravan. To put the property into repair, William Junior secured an advance of nearly £7,000 by charging the property to the Halifax Building Society. Nobody questioned his title to the property as his name was the same as that of his grandfather which was the name that appeared on the conveyance of 1953.

8

On 21 October 1993, William Junior died. By his will he appointed his sister Thirza and the defendant as his executrices, and left them his entire estate, real and personal, in equal shares. The defendant proved the will and by an assent dated 14 April 1994, purported to assent 2 Rose Cottages to herself and her mother subject to the charge of the Halifax Building Society.

9

On 31 March 1995, Thirza died. By her will dated 13 March 1995, she left her entire estate to her only child, the defendant. It is by that route that the defendant claims to be the sole owner of 2 Rose Cottages subject to the charge to the Halifax Building Society.

10

On 23 December 1995, the plaintiff issued an originating summons claiming amongst other things a declaration that she was entitled to a one third share in 2 Rose Cottages and an order that the property be sold and the proceeds of sale, after deduction of costs and expenses of the sale, should be divided as to one third to the plaintiff and the balance to the defendant. Unfortunately, pleadings were not ordered, but the contentions of the parties are set out in the affidavits. The plaintiff's claim appeared simple. The property was purchased by the grandfather. He died inestate with the result that the beneficial interest passed to the grandmother. She died intestate which meant that the plaintiff was entitled to a one third share of her estate.

11

On behalf of the defendant, it was contended that 2 Rose Cottages was purchased by her uncle William Junior and not by the grandfather. That case was rejected. The judge said:

"On the balance of probabilities it is clear in my judgment that the purchaser was William Senior [the grandfather] who used his own moneys coming from his inheritance and he became the legal owner in fee simple."

12

The defendant contended in the alternative that the plaintiff's claim was statute barred. As the judge pointed out the limitation period for an action to recover any land expires after 12 years. Paragraph 2 of Schedule 1 of the Limitation Act 1980 provides that where the action was to recover any land of a deceased person and the deceased person was in possession of the land at the date of death, then the right of action is treated as having accrued at the date of death. Consequently time began to run at the date of the grandmother's death in February 1972 which was nearly 24 years before the proceedings were started. Upon that basis, the judge held that at first glance the claim appeared to be barred by Section 15(1) of the Limitation Act 1980.

13

The plaintiff's case did not rest there as she relied upon Section 21 of the Limitation Act 1980. It provides that no limitation period prescribed by the Act should apply to an action by a beneficiary under a trust to recover trust property in possession of the trustee or previously received by the trustee and converted to his use. The plaintiff submitted that the defendant's title was through William Junior who held the property as trustee. It followed that her claim was not statute barred.

14

The judge concluded that William Junior was, probably also his sister, an executor de son tort and that being so he was not a trustee. He concluded that the continued occupation of 2 Rose Cottages by William Junior and Thirza following the death of the grandmother did not affect their respective beneficial entitlements. Prior to February 1984, they had jointly excluded the plaintiff by adverse possession. On the death of William Junior in 1993, Thirza became solely entitled to 2 Rose Cottages by survivorship. By her will, Thirza left her entire estate to the defendant which was sufficient to pass her interest in the property to the defendant.

15

The plaintiff relying upon an article by Mr Frank Hinks entitled "Executors de son tort and the limitation of actions" published in The Conveyancer in 1974, contended that this was a case where a constructive trust arose with the result that William Junior held the property as constructive trustee under that trust. It followed, according to the plaintiff, that the Limitation Act did not apply. The judge held:

"There is certainly an attraction in the argument that what one might call a 'bona fide' Executor can never obtain a title by adverse possession and therefore it is inequitable that an Executor de son tort can do so.

Grateful though I am to both Counsels for their erudition and their well honed arguments I would have been even more grateful for some direct authority on this point. Absent any guidance on this point it seems to me that Parliament, wittingly or unwittingly has drawn a distinction between personal representatives and executors on the one hand who are trustees and Executors de ses torts who are not. There is certainly an attraction in the argument for extending the boundaries for constructive trusts to incorporate Executors de ses torts especially on facts such as these where William Junior has at best behaved in a cavalier fashion towards his sister, the Plaintiff, and in her eyes been downright dishonest in asserting that he was the William John Warren who had purchased Rose Cottage.

The other side of the coin is that the Defendant is an innocent third party who has merely accepted, perhaps a little unquestioningly, what she was brought up to believe, and the Plaintiff has delayed 24 years, during none of which she was under a disability, before incepting these proceedings.

On the state of the law as I find it I hold that the Limitation defence succeeds. If I am wrong about that I would be inclined to fall back on Section 36(2) of the Limitation Act 1980, but as no argument was addressed to me either way on acquiescence or laches it would not be appropriate to concluded that I would necessarily have refused relief on that ground."

16

Before us there was a measure of agreement between the parties as to the legal position. They agreed that upon the death of the grandfather, the grandmother became entitled to 2 Rose Cottages. When she died intestate, her interest was to be held on statutory trusts for her three children. They also accept that William Junior and possibly Thirza behaved as if the property belonged to William Junior. He was a person who without valuable consideration meddled in the estate of the grandmother. His actions were such that he became what is known as an executor de son tort. To decide the consequence...

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