Pickering v Stevens

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Bishop J.A.
• Judgment Date: 08 October 1984
• Neutral Citation: VG 1984 CA 1
• Docket Number: Civil Appeal No. 1 of 1982
• Date: 08 October 1984

Court of Appeal

Berridge, C.J. (Actg.), Robotham, J.A.,Bishop J.A. (Actg.)

Civil Appeal No. 1 of 1982

Pickering

and

Stevens

Appearances:-

Dr. F. Ramsahoye, S.C. and Mr. E. Hewlett for claimant/appellant.

Mr. J.S. Archibald, Q.C. and Mr. G. Farara for claimant/respondent.

Real Property - Adverse Possession.

Real Property - Title.

Facts: The appellant acted as attorney for the executrix of the estate of W.M.P. The defendant was the executor of the estate of E.S., W.M.P. and E.S. sister. W.B.P., grandfather of W.M.P. and E.S. devised land to their father and aunt in equal shares. W.M.P. was the father's heir. W.M.P. left Tortola in 1919 and returned in 1971. The aunt was in possession from 1919 until her death in 1938. E.S. was the aunt's executrix and remained in continuous possession until 1973 when she died. The Adjudication Officer held that the aunt had prescribed against W.M.P.

Facts: Appellant acted as attorney for the executrix of the estate of W.M.P. The defendant was the executor of the estate of E.S. W.M.P. and E.S. were brother and sister. W.B.P., grandfather of W.M.P. and E.S., conveyed property to himself as trustee for his five children their heirs and assigns. Three of the children predeceased the father. W.B.P. subsequently devised property to a daughter. The Adjudication Officer held that W.B.P. was in breach of his trust and should have vested the property in the children. When they attained their majority.

Held: There was no reason to interfere with the finding of the Adjudication Officer.

Held: The beneficiaries were tenants in common. Since the three children who predeceased their father died without issue, their shares reverted to their father. W.B.P. was in position to dispose of three fifth of the property.

1 Bishop J.A. (Acting): In December 1981, opposing claims to four areas of land, known as The Heritage, Old Plantation, Beef(s Estate and Dixon's Estate, were heard and determined by the adjudication officer. Those persons claiming were, on the one side, Ivor Stevens, executor of the Estate of Ethelinda Lenora Stevens, deceased, along with others' and on the other side, Dawn Picketing (nee Penn) the lawful attorney for Emmelyn Penn who was executrix of the Estate of Willimn Mc Farlane Penn, deceased.

I. THE RELATIONSHIP OF THE CLAIMANTS

2 William Benjamin Penn, who died in 1896 - leaving a will - was her of five lawful children, namely, Ludolph Geraldine, Ella Urania Conrad Wylie, Frederica Seraphina, and Oscar Theobald. The three last mentioned children each pre-deceased their father.

3 Ludolph Geraldine was twice married. The only child of his first marriage was Ethelinda Lenora and the six children of his second marriage were, William Mc Farlane, Benjamin Walker, Reginald Claudine, Frederick, Daniel Webster, and Nedd. Ludolph Geraldine Penn died - intestate - (probably between 1902 and 1903 and certainly) before 1906.

4 Now Ella Urania Penn was never married. She died single, without issue, and leaving a will dated 1st June 1915. She died in 1936.

5 Ethelinda Lenora Penn, daughter of Ludolph, married a Mr. Steven and they had seven children including Ivor Stevens. Ethelinda Lenora died on the 3rd May 1973 leaving a will dated December 1964, and it is her son Ivor who has, with others, claimed the lands in dispute.

6 William Mc Farlane Penn, eldest son and heir of Ludolph Penn, married Emmelyn Perry and they had three daughters, Dawns Patricia, and Audrey. William Mc Farlane died in Jamaica in 1972. He left a will.

7 Dawn Penn married a Mr. Pickering and it is she who has also laid claim to the said lands. Her claim was as the lawful attorney for her mother who in turn was executrix of the Estate of William Mc Farlane Penn.

8 The above indication of the relationships suffices for the purposes of this matter.

II. THE FINDING OF THE ADJUDICATION OFFICER

• (a) The Hermitage

II. THE FINDING OF THE ADJUDICATION OFFICER

9 By an indenture of conveyance dated 6th July 1962, “made between Henry Lettsome Mc Clean trustee under the marriage settlement of John Charles Lloyd and Elizabeth Ann Lloyd his wife nee Rookliff of the one part and William Benjamin Penn as trustee to the minors Oscar Theobald Penn, Ludolph Geraldine Penn, Frederica Seraphina Penn, Ella Urania Penn and Conrad Wylie Hughes Penn, infant children of the said William Benjamin Penn of the other part the marriage settlement was revoked and the land the subject of the said marriage settlement was conveyed in consideration of the sum of four pounds paid by William Benjamin Penn to the said William Benjamin Penn to the use of the William Benjamin Penn as trustee to the said children mentioned above their heirs and assigns forever.”

10 By his will, dated 20th November 1891, William Benjamin Penn devised this area to his daughter Ella Urania and to her heirs forever. Ella Urania continued to live and occupy the land until she left for Nevis a few years before her death in 1938, “without any person questioning her authority as owner. (Ludolph Geraldine, son of William Benjamin, died some time before 1906. William Mc Farlane, eldest son of Ludolph, left Tortola in 1919 and returned, for the first time thereafter, in 1971. Prom 1938 until the dispute arose, Ethelinda Lenora Stevens (sole executrix of the Estate of Ella Urania) and her children were in possession of The Hermitage.

11 Then the adjudication officer noted as follows:–

12 (It appears that the deed creating the trust vested the legal ownership in the trustee William Benjamin Penn with a covenant for further assurance to do all that was necessary for effecting and carrying out of the intention of the trust. It seems to me that the trustee William Benjamin was in breach of his trust and should have vested the property in the children on their attaining their majority and therefore section 19(1) of the Limitation Ordinance (Cap. 44) applies. I give absolute title to the executor of the estate of Ethelinda Lenora Stevens and others of 4/5 of the Hermitage being Block 3539B parcels 103 and 112 and absolute title of one-fifth to the executrix of William Mc Farlane Penn.

• (b) Old Plantation

13 The claim of William Mc Farlane Penn was unfounded and absolute title was given to the executor of Ethelinda Lenora Stevens and others, of the area of approximately 46 acres in parcel 4 Block 3440B.

14 Later it will be apparent why it is unnecessary to say more than that.

• (c) Keels Estate

15 Parcel No. 2 Block 3744A containing about 60 acres and located on the island of Great Camanoe was conveyed by deed of gift to William Benjamin Penn in the year 1847. It was then devised under his will to his son Ludolph Geraldine and his daughter Ella Urania, in equal shares, Ludolph's William Mc Farlane Penn left Tortola in 1919 and returned in 1971. The adjudicating officer found that Ella Urania was in possession from at least 1919 until her death in 1938, and thereafter her niece arid executrix Ethelinda Lenora Stevens remained in continuous possession, through herself and her agents, until 1973 when she died. In his own words: (I find there is sufficient and abundant evidence to establish adverse possession for over 40 years. (Then the adjudicating officer stated the legal position before and after 1928, as he perceived it, and he concluded “that Ella Urania Penn was NOT a trustee under the will of 1896 and could prescribe against William Mc Farlane Penn; (anal in the circumstances the claim of the executor of Ethelinda Lenora Stevens and others succeeded over that of Dawn Pickering. Absolute title of this parcel of land was awarded to the successful claimant.

• (d) Dixons Estate

16 This parcel of land adjoined Keels Estate and comprised 90 acres of land. It was bought by Ludolph Geraldine Penn from Marion Dixon, not in 1885 as stated ire the decision but in 1871 as shown on the deed exhibited. About two years later, in July 1873, Ludolph granted unto his brother Conrad Wylie and his sister Ella Urania, their heirs or assigns forever, thirty acres each of the land, in consideration of the sum of six pounds sterling paid to him by each of them. Conrad pre-deceased his father and his brother; and the adjudicating officer held that his estate “was inherited by his father William Benjamin Penn. (In addition he found that Ella Urania was entitled to...