Re Cummins, deceased ; Cummins v Thompson
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE MEGAW |
| Judgment Date | 13 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0713-2 |
| Date | 13 July 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0713-2
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of Mr. Justice Plowman on 23rd October 1970.
The Master of the Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Megaw
In The Natter of the estate of Kenneth Albert Cummins deceased
and
In the Matter of the Married Women's Property Act, 1882,
In the Matter of the Inheritance (Family Provision) Act 1938
Mr. E. G. NUGEE (instructed by Messrs. Church Adams Tatham & Co., agents for Messrs. Baker Son & Isherwood of Andover) appeared on behalf of the Appellant Plaintiff.
Mr. IAN PAYNE (instructed by Messrs. MacDonald Stacey & Co.) appeared on behalf of the fourth and fifth Defendants, Respondents,
This is another case about matrimonial property but with an entirely new feature. Husband and wife aye both dead. The question is to whom the property should go.
The couple, Mr. and Mrs. Kenneth Albert Cummins, were married on the 6th June 1916 In the parish church at Andover. They were both aged 20. He was serving in the Army at the time. They had three children, a son Norman born in 1916, a daughter born in 1920 and another son born in 1922. The husband died on the 6th July 1968 at the age of 73. He left a considerable estate, some to his widow, but most of it to some neighbours. The widow claimed that she was entitled to half the property. She said that her husband and she ran a business of selling fruit, vegetables and fish: that he took all the profits of it and used them to buy property which formed his estate at his death: and that she was entitled to half of it. The Judge rejected her claim on the ground that it was a claim against the estate of a deceased person and there was no sufficient proof to establish it. Six weeks later the widow herself died at the age of 75. Her eldest son Norman took out letters of administration to her estate. He appeals to this Court.
The facts, as told in the widow's affidavit, were as follows: -
Soon after coming out of the Army in 1918, the husband opened a shop in Andover for vegetables, fruit and fish. She ran the shop. He went round the neighbouring villages selling from a cart. On Fridays and Saturdays they had a stall in the market at Andover. They closed the shop on those days and both worked at the stall. When the eldest son Norman became 13 in 1929, he used to help his mother in the shop and also at the stall in the market. The father helped in the market too. Sothe business vent en until the outbreak of war in 1939.
During these 21, years the husband never paid the wife a wage or any other money. She used to take what was required for the household and her personal expenses. He kept the rest of the profits of the business in his own hands.
It was during those 21 years that the husband acquired a lot of property. He bought a piece of land in Wolversdene Road, Andover, and built three houses on it, Nos. 13, 15 and 17 Wolversdene Road. He bought three houses, Nos. 150, 152 and 154 Old Winton Road, Andover. He bought other plots of land in Wolversdene Road.
During the war of 1939-45 the husband got work at the Ordnance Depot at Weyhill. The two sons joined the Army. The wife carried on the business with no assistance at all except from her daughter-in-law. When the war ended, the sons set up a separate business of their own. But the wife still kept on the business as she had done all along. She handed all the takings to her husband. He never paid her a wage. But the household expenses and her personal expenses came out of the takings. This went on until 1952. During this time the husband built a warehouse on the land he had bought in Wolversdene Road. It cost £1,000 to build. The money came out of a Post Office Savings account in the joint names of husband and wife.
In the year 1952 the husband had an accident. He won a bottle of whiskey in a raffle. He got drunk and fell down the stairs. He damaged his spine and became paralysed. He could only get about in a wheeled chair, or afterwards in an invalid car. In consequence the wife had to give up the business. She stayed at home looking after him. He had to be waited on hand and foot.
By the end of 1967 the husband had become worse. He was bedridden. He had to go into the hospital at Winchester. He case out in January 1968. As his wife could not look after him, he went into the house of a couple who lived nearby, a Mr. and Mrs. Thompson. They took him in at £24 week. The sons paid it by banker's order. Six months later, on the 6th July 1968, he died.
Two weeks before the husband died, he made a will. He had a good deal to dispose of. He had in his own name the property in Wolversdene Road and old Winton Road and considerable sums in building societies. In all it came to over £31,000. By the will he left £5,000 to his wife: but nothing to his children. He left something to his own brother and sister, but must of his estate went to and Mrs. Thompson, the neighbours who had looked after him for the last six months. He was undoubtedly ill when he made this will. His signature to it is very shaky indeed. It was witnessed by a consultant psychiatrist and a solicitor. We must assume that he was of sufficient testamentary capacity.
At the trial before the Judge, the widow was cross-examined upon her affidavit. The Judge said of her: "She really was a pathetic figure in the witness-box. She is very nearly 75 years old. She is very confused. She said herself that her memory had gone and I think that very largely it had. She said she really had not any idea where the source of her husband's assets was."
The Judge rejected the widow's claim for want of proof. Be said: "The Courts have always taken the view that in a case of this sort the claim must be regarded with suspicion. Corroboration is always desirable and in the present case I think that it is more desirable than ever, having regard to the wayin which the plaintiff gave hey evidence …. On the evidence before me I find it really impossible to conclude that the plaintiff has proved that the testator's property was attributable to his business."
The first point that arises is whether the wife, by working in the business, acquired any share in the profits thereof. Upon this the law was not in dispute between Counsel before us. Moat of the cases about a business have been decided under Section 17 of the Married Women's property Act 1882, but the same principles apply whatever the form of the proceedings. They are similar to the principles relating to the matrimonial home. Even though the wife does not contribute in money, nevertheless she may contribute by her work. She must be given credit for it Just as much as if she had gone out to work and brought her earnings into the pool. I would venture to quote from my own judgment in Nixon v. Nixon. 1969, 1 W. L. R. at page 1679:
"What is the position of a wife who helps in the business? Up and down the country a man's wife helps her husband in the business. She serves in the shop. He does the travelling around…. If they acquire the shop and business after they marry - and acquire it by their joint efforts - then it is their joint property, no matter that it is taken in the husband's name. In such a case, when she works in the business afterwards, she becomes virtually a partner in it - so far as the two of them are concerned - and she is entitled, prima facie, to an equal share in it." As that case shows, the wife becomes entitled to a share not only in the profits of the business itself, but also in property acquired by those profits.
Nixon v. Nixon was followed and was applied in Mustzel v. Mustzel, 1970 1 W. L. R. 188. There has since been the decision of the House of Lords in Gissing v. Gissing 1970 3 W. L. R. 255. Mr. Payne very fairly admitted that it does not throw the slightest doubt on the principles laid down in Nixon v. Nixon. But it does show the legal basis. The Court imposes or imputes a tract whereby the husband holds the assets of the business - or their proceeds - on trust for both jointly, and, in the absence of any evidence sufficient to enable the Court to distinguish between them, for them both equally.
Such being the law between husband and wife (which is applied daily when both are alive), the same principle must apply after the death of one or other or both of them. The title is to be dealt with in the same way.
The Judge here did not, however, apply the law so laid down because he was not satisfied that the assets of the deceased's estate did represent moneys which came from the business. Mr. Payne sought to support this before us. He said there was no evidence that the properties were bought out of the profits or proceeds of the business. In the absence of evidence, the husband might have got the money elsewhere. But I think that is putting too high a burden on the widow. There is no evidence that the husband had any other source of income apart from the business. If he had, I should have thought some one would have known of it and come...
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