Re Edwards' Will Trusts
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE EVELEIGH,LORD JUSTICE BRIGHTMAN |
| Judgment Date | 06 February 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0206-5 |
| Docket Number | 81/0083 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1981 |
[1981] EWCA Civ J0206-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
GROUP B
(THE VICE CHANCELLOR, Sir Robert Megarry)
Royal Courts of Justice,
Lord Justice Buckley
Lord Justice Eveleigh
and
Lord Justice Brightman
81/0083
1977 E No. 2329
In the Matter of the Trusts of the Will Dated 18th June
1949 of Arthur Sydney Edwards Deceased
MR. T. ETHERTON (instructed by Messrs. Outred & Co., Solicitors, London WC2, agents for Messrs. Donne Mileham & Haddock, Solicitors, Newhaven) appeared on behalf of the Defendant (Appellant).
MR. A.E. BROOKS (instructed by Messrs. Bedford & Co., Solicitors, Peacehaven) appeared on behalf of the Plaintiff (Respondent).
This is an appeal from an order made by vice Chancellor Megarry on 3rd August 1978 upon the hearing of the originating summons in this matter. That order was made in the absence of the defendant in circumstances which will appear hereafter.
The plaintiff and the defendant are brothers. At the date of her death on 4th July 1930 their mother ("Mrs. Edwards") was the owner in fee simple of two adjoining plots of land at Peacehaven in East Sussex which are shown in the plan attached to the Vice Chancellor's order numbered "1" and "2" respectively. At that time each of the two plots extended southwards to a frontage on Firle Road. At the end of plot 2 remote from Firle Road there stood, and still stands, a house now known as 128 Phyllis Avenue.
Mrs. Edwards was survived by her husband ("Mr. Edwards"). She died intestate and Mr. Edwards was the sole beneficiary of her estate. From the death of Mrs. Edwards until his own death on 3rd January 1950 Mr. Edwards occupied the two plots in question, residing in 128 Phyllis Avenue. Letters of administration of Mrs. Edwards' estate were granted to Mr. Edwards on 27th August 1930, but he never executed any assent in writing in his own favour in respect of the two plots or any part of them. This may very probably be explained by the fact that until the decision in re King's Will Trusts, (1964) Chancery, 542, it was fairly generally thought by conveyancers that, where the legal estate in land had become vested in a person beneficially entitled to that land but had become so vested in some capacity (e.g. as the executor of the previous owner) other than the capacity of beneficial owner, no assent in writing was necessary to clothe that person with the legal estate in his capacity as beneficial owner.
Mr. Edwards appointed the plaintiff and the defendant executors of his last will which they proved on 29th March 1950. On 25th April 1950 they executed what purported to be a written assent in respect of the two plots. This purported to assent to the fee simple in the two plots vesting in themselves upon a trust for sale declared by Mr. Edwards' will. If, however, re King's Will Trusts was rightly decided—and the contrary has not been suggested—the purported assent cannot have had that effect, for the legal estate was never vested in Mr. Edwards in any capacity other than that of administrator of Mrs. Edwards' estate. The plaintiff and the defendant have subsequently together obtained a grant of administration de bonis non to their mother's estate but they have made no written assent in respect of the legal estate in the two plots.
From the death of Mr. Edwards until the compulsory purchase which I shall shortly refer to, the two plots were occupied by the defendant with the consent of his brother, the plaintiff, and he resided in 128 Phyllis Avenue. The only beneficiaries under Mr. Edwards' will were the two brothers and the defendant's wife, who also presumably consented to the defendant's occupation of the property.
The southern extremity of each of the two plots fronting on to Firle Road was sold off. When this took place does not appear from the evidence except that an endorsement on the assent referred to earlier indicates that part of the southern extremity of Plot 2 was conveyed by the plaintiff and the defendant to a named company on 16th March 1965. The only significance of these transactions is that they left the remainder of the two plots (which I shall henceforth refer to as "the property") land-locked except so far as access could be obtained thereto from Phyllis Avenue (a road which runs north and south to the east of the two plots) across a piece of land numbered "3" on the plan annexed to the Vice Chancellor's order, which occupies an area lying between Phyllis Avenue and Plot 2. It is apparently common ground that, in addition to the property, Mr. Edwards owned at his death a narrow strip of land measuring approximately 12 ft. by 80 ft. forming the northern extremity of Plot 3 and extending from the eastern boundary of the property to the western verge of Phyllis Avenue. The evidence in support of the originating summons relating to Plot 3 is this: "For very many years both before and after the death of the Testator (i.e. Mr. Edwards) extensive use was for the purpose of the property made of the unoccupied plot to the east known as Block 3 which gave access to Phyllis Avenue".
In or about 1965 a dispute arose between one John Albert Morton and the defendant about the ownership of Plot 3. In an action entitled Morton v. Edwards (1965) M. 865, Mr. Morton claimed to be the true owner of Plot 3, and the defendant counterclaimed a possessory title to it. This action was compromised upon terms under which Mr. Morton conveyed to the defendant free of charge a piece of land measuring 80 ft. by 40 ft. extending from the eastern boundary of Plot 2 to the western verge of Phyllis Avenue and the defendant abandoned his claim to any other part of Plot 3. This piece of land is shown hatched blue on the plan annexed to the Vice Chancellor's Order. It is there referred to as "the access strip" and I shall so call it. It is with the access strip that we are concerned in this appeal. By his originating summons the plaintiff claimed, and in the event he obtained from the Vice Chancellor, a declaration that at all material times the access strip was subject to the trusts of Mr. Edwards' will. From the time of its conveyance to the defendant until it became vested in the East Sussex County Council in pursuance of the compulsory purchase on 21st March 1977, the access strip was used for the purpose of obtaining access to and from the property from and to Phyllis Avenue.
The evidence contains no indication of what has happened since 25th April 1950 to the strip of land at the northern extremity of Plot 3 mentioned earlier, or of who now owns it.
When the County Council obtained its compulsory purchase order, which comprised not only the property but also the access strip, the consequent negotiations of the compensation to be made brought to a head a difference between the plaintiff and the defendant about the beneficial ownership of the access strip. The plaintiff consequently issued the originating summons in these proceedings on 8th December 1977. In its original form it asked merely for the declaration which I mentioned earlier and certain consequential relief. The summons in this form was served on the defendant on 4th April 1978 together with a notice of an appointment for a hearing before Master Gowers on 27th April 1978. There must, however, have been some form of earlier service of the summons, for appearance was entered by the defendant personally on 19th December 1977. In February 1978 the defendant, through a firm of London solicitors, applied for legal aid. When the defendant received the notice of the appointment for hearing to take place on 27th April 1978, he forwarded this to the solicitors in question, who replied saying that they could not act for him until he had been granted legal aid, and advising him to attend the hearing in person. He did not do so, but instead, on 26th April 1978, he wrote to the Registrar of the Chancery Division explaining that he was the defendant in these proceedings, of which there was to be a hearing on 27th April, and explaining the position regarding his legal aid application. We do not know whether this letter was brought to the Master's attention on 27th April. It seems that at the hearing on that day Master Gowers directed that the matter should be set down within 14 days for an early hearing. It was, I think, unfortunate that no intimation of this direction was given either by the court or by the plaintiff to the defendant. The time for setting down was later extended by the court, but the defendant does not seem to have known anything about this. He subsequently received by post from the court a notice dated 17th July 1978 saying that the originating summons had been entered for trial in the non-witness list. This communication contained no reference to an early hearing. The words "You should watch the weekly warned list for further information" were deleted from it. In the meantime the originating summons was by leave amended on 1st June 1978. The amendment consisted of the addition of a paragraph asking for the appointment of the defendant's wife as a trustee of Mr. Edwards' will in the place of the defendant and jointly with the plaintiff; that is to say, the defendant's removal as a trustee was sought. The defendant was served personally with the amended originating summons on 6th June 1978.
The defendant was notified that he had been granted legal aid by a letter dated 23rd June 1978. He accepted that offer by a letter posted on 27th June 1978. He had then had notice of an application to be heard by Master...
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