Watler v DaCosta

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 13 November 1980
• Court: Grand Court (Cayman Islands)
• Date: 13 November 1980

Grand Court

(Summerfield, C.J.)

WATLER

and

DACOSTA

R.D. Alberga, Q.C. for the appellant;

T. Bodden for the respondent.

Cases cited:

(1) Ritch”s Estate Ltd. v. Reed, Grand Ct., Cause No. 26 of 1976; on appeal, Court of Appeal, Civil App. No. 2 of 1979, unreported, applied.

(2) Savill Bros. Ltd. v. Bethell, [1902] 2 Ch. 523; (1902), 71 L.J. Ch. 652; 87 L.T. 191, distinguished.

(3) Scott (Estate of) v. Ashwell, Grand Ct., Cause No. 548 of 1977, unreported, applied.

Land Law-land adjudication-appeals-court will not disturb adjudicator”s findings unless appellant affirmatively demonstrates title to identifiable land-if shows genuine and legitimate interest short of title, may justify court remitting for rehearing

Land Law-future interests-selection of land from larger parcel-gift of land not void as in futuro if donor gives all land to named donees but requires one donee to select parcel of specified size within larger parcel

Land Law-land adjudication-rehearing-no rehearing if restructuring appellant”s case would prejudice successful respondent and if no appeal against decision at dispute stage but only at petition stage

The appellant appealed against a land adjudication under which the adjudicator adjudged the respondent to be the owner of 6 acres of land claimed by the appellant.

Prior to his death, the donor by deed of gift gave to Inez 6 acres of his property of 31 acres, ‘the same to be subject to selection by her.’ The ‘remaining portion’ of the property he divided equally between his seven children, one of whom was the appellant”s mother. Inez selected 6 acres, enclosed 1 acre on which she grew crops and grazed cattle on the remaining 5. After her death, her executor proceeded to enclose the whole 6 acres and conveyed them to the respondent for valuable consideration for the benefit of Inez”s estate. The appellant, having become administratrix of her late mother”s estate, petitioned in her own name (originally with four others) under s.20 of the Land Adjudication Law, 1971, claiming the whole 31 acres, on the basis of documents and maps. The respondent claimed the 6 acres which had been conveyed to him. At the petition stage the appellant originally sought to establish that Inez had never had title to any part of the donor”s property but subsequently conceded her title to 6 acres and merely disputed the boundaries of that parcel. The adjudicator awarded the 6 acres to the respondent and the remaining 25 acres to the appellant in her personal capacity, rather than as administratrix of her mother”s estate.

On appeal against the adjudication, the appellant, again in her personal capacity, submitted inter alia that (a) the original gift to Inez was void in that it purported to take effect in futuro if and when she made her selection of the land; alternatively (b) if selection could cure this defect, it should have been made during the joint lives of the donor and donee, or at least during the lifetime of the donee, which had not been done.

Held, dismissing the appeal:

(1) The court would follow the principle that it would not disturb the findings of the adjudicator, however tenuous their basis might be, unless the appellant could affirmatively demonstrate title to clearly identifiable land, or at least show a genuine and legitimate interest in the land falling short of title, which would justify remitting the matter for rehearing by the Tribunal (page 88, line 24 – page 89, line 4; page 90, lines 12–25).

(2) The appellant had clearly not shown that she had any genuine interest or title in the land at all, since-

(a) if the original gift to Inez were void as taking effect in futuro, it followed that the gift of the ‘remaining portion’ to the seven children would also be void, because it could not have come into existence as an entity until Inez had made her selection of the 6 acres. Similarly, if selection would have cured the defect and none had been made, there would equally have been no ‘remaining portion’ to pass to the seven children (page 87, line 18 – page 88, line 23);

(b) similarly, if the original gift were void, the appellant would need to have tendered evidence to show what had happened to the title to the entire property upon the death of the donor and in particular whether some part of it passed to the appellant”s mother either under the donor”s will or on his intestacy. This she had not done (page 89, line 6 – page 90, line 11);

(c) if the original gift to and the selection of the 6 acres by Inez were valid, the most that could have passed to the appellant”s mother was either an undivided 1/7 share of undetermined location within the remaining 25 acres, or a freehold interest in an area equal to 1/7 of 25 acres similarly of undetermined location. This was entirely different from the ownership of a defined 6 acres which she now claimed (page 91, lines 13–34);

(d) on no view of the evidence could the appellant be entitled to an interest in her personal capacity. Her only claim could lie in her capacity as the administratrix of her mother”s estate but she had both petitioned and appealed in her personal capacity and was therefore bound to fail (page 91, line 35 – page 92, line 2).

(3) Although this was sufficient to dispose of the appeal, the court was nevertheless of the opinion that the original deed of gift was effective in conveying the whole of the legal estate in the donor”s property. The two gifts together divested the donor of the whole of his interest in the property and all that remained to be determined by Inez”s selection was the precise location of the 6 acres and, consequently, of the ‘remaining portion.’ The transfer of the interests in the land was not therefore in futuro but immediate, despite the act of selection which had subsequently to take place (page 87, lines 29–32; page 90, line 26 – page 91, line 6).

(4) The case would not be remitted for rehearing by the Tribunal not only because the appellant had failed to demonstrate any legal interest but also because (a) a rehearing would necessarily involve the restructuring of the appellant”s case both in the light of the capacity in which

she would need to proceed and the evidence which she would need to adduce, both of which would create a situation prejudicial to the respondent; and (b) it would be impossible to remit for rehearing the matters relating to the petition without also reopening the decision at the dispute stage of the proceedings, against which there had been no appeal. The appeal would therefore be dismissed (page 92, lines 6–41).

SUMMERFIELD, C.J.: The land in dispute is a 6-acre lot
which was part of a larger tract of some 31 acres known as
‘McLaughlins,’ formerly owned by Nathan Merren. By a volun-
tary conveyance (‘deed of gift’) dated March 17th, 1930, Nathan
20	Merren disposed of a number of parcels of land owned by him,
mainly to his children. Clause 6 and part of cl. 7 of that deed of
gift are relevant to this dispute, namely:
‘6. To Inez Jackson, her heirs and assigns, six (6) acres of
land, the same to be subject to selection by her out and from
25	my property known as “McLaughlins,” South Side; Together
with all easements and appurtenances thereto belonging;
And All The Estate, right, title and interest therein.
7. To Almeria Eglantine, Elizabeth Jane Bodden,
William Nathan Junior, Florentine Sarah Coe, Kemuel
30	Edward, Calvert James, and Leonides Evert their heirs
and assigns in equal portions, All those pieces or parcels of
land commonly called or known as follows:
. . .
(2) The remaining portion of “McLaughlins”
35	. . .
(4) . . . land consisting of lots known as [naming
them] . . . .’
Inez Jackson (who later became Inez Coe and is so referred to
hereinafter) was not a child of Nathan Merren but lived as a
40	member of the family. Elizabeth Jane Bodden was a daughter of
Nathan Merren and was the mother of the appellant herein.

Clearly Nathan Merren”s intention was to convey to Inez Coe a
certain 6 acres of land in the south of ‘McLaughlins’ in fee sim-
ple, to be selected by her; and to convey the remainder of
‘McLaughlins’ (some 25 acres) to the seven children (including
5	Elizabeth Jane Bodden) named in cl. 7 to hold as tenants in

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