Randolph M Howard v Aubrey Monroe

• Jurisdiction: St Vincent and the Grenadines
• Judge: BARROW, J.A.,Denys Barrow, SC,Justice of Appeal,Chief Justice [Ag.]
• Judgment Date: 15 January 2007
• Judgment citation (vLex): [2007] ECSC J0115-8
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CIVIL APPEAL NO.4 OF 2006
• Date: 15 January 2007

[2007] ECSC J0115-8

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, S.C. Chief Justice [Ag.]

The Hon. Mr. Michael Gordon, Q.C. Justice of Appeal

The Hon. Mr. Denys Barrow, SC Justice of Appeal

CIVIL APPEAL NO.4 OF 2006

Between:

Randolph M. Howard

Appellant

and

Aubrey Monroe

Respondent

Appearances:

Mr. Stanley John and Mr. Rakin John for the Appellant

Mr. Joseph Delves for the Respondent

BARROW, J.A.

1 At issue is the minimum equity to do justice to the respondent who established a claim to proprietary estoppel against the estate of Agnes Bute, (the deceased), in relation to a parcel of land with a dwelling house on it situate at Ratho Mill (the property). Bruce-Lyle J ordered the fee simple to be transferred to the respondent. The appellant submits that an order compensating the respondent for the time and money he spent on the property, along with the one-fifth share in the property that the deceased devised to the respondent, would do justice to the respondent.

2 In the course of argument Mr. Stanley John, lead counsel for the appellant, indicated he would not pursue the appeal against the judge's finding that there was a proprietary estoppel in favour of the respondent and we think counsel was right to take that course. The relevant facts can therefore be stated briefly.

3 The respondent, who was about 78 years old at the time of trial, was the nephew and godson of Mr. Alexander Bute and called his uncle's wife, the deceased, his aunt. The Butes lived in Philadelphia in the United States of America and in about 1970 they built the house at Ratho Mill. The Butes would spend the colder months, October to April, in the house. The respondent used to visit them. Title to the land stood in the name of the deceased but the Butes apparently regarded it as their joint property. The respondent became their man of business and was put in charge of the property in about 1984. One year, probably in 1998, when the couple was in residence, the uncle became quite ill and the respondent moved into the property at the specific request of the Butes to assist in caring for the uncle and the deceased, who was also unwell.

4 The Butes repeatedly told the respondent that they would give the property to him and after the death of the uncle, in October 1999, the deceased repeated the promise to the respondent that the property would be his. The last time the deceased told this to the respondent was when she was about to leave St. Vincent on 9^th May 2000.

5 A concrete expression of the promise to the respondent is found in the mutual wills that the Butes made in September 1997 in which they each devised the property to the respondent. In the will of the deceased appeared the following devise:

"I give and bequeath my real estate situate in Rathomill, St. Vincent Island, British Caribbean Islands, together with all furniture, equipment, supplies and contents therein, along with any automobiles I may own on said island at the time of my death unto my nephew-in-law, AUBREY MONROE, or his issue, per stirpes, who survive such distributable event."The executor sent a copy of the mutual wills to the respondent at the request of the uncle. When the Butes next came to St. Vincent after the wills had been sent they confirmed from the respondent that he had received the copies. The Butes told the respondent that he could do whatever repairs he wished to the house.

6 Over the period 1998 to 2000, as the judge found, the respondent did the following works to the property:

• "(1) Constructed a chain link fence with fencing poles

• (2) Constructed another fence by using galvanize

• (3) Constructed a concrete base with concrete and using three hundred and twenty-four 6-inch concrete blocks at another point on the land.

• (4) Making good the driveway and yard area that had deteriorated and was in a state of [dis]repair

• (5) Putting in place a metal gate and concrete columns thus securing the entrance to the dwelling house

• (6) Replacing ten sheets of ten feet galvanize to the roof of the building"

The respondent gave the cost of doing these works as $70,000.00 and the judge believed him.

7 As a result of the promise the respondent left his own home and lived on the property from 1999 until 2004 when he was evicted. The respondent raised his 19 dogs there and kept them there even after the disconnection of the electricity, water and telephone services to the property forced him to move. As a result of the promises that the property would be his, the respondent paid the property tax annually beginning in 1998.

8 After the uncle died in October 1999 the deceased remained in residence on the property until she returned to the United States in May 2000. According to the respondent, before the deceased left she told Alexander Laing, a great nephew who later became her attorney, and who had been spending time at the house, to leave the property and told the respondent "not to harbour him". The deceasedexecuted a new will, in Philadelphia, on 17^th November 2000 (the later will) by which she gave the property to five persons including the respondent, in equal shares. One of those five beneficiaries was the said Alexander Laing, who was also named as one of two executors. On 2^nd November 2001 the deceased executed a power of attorney in favour of Mr. Laing and another person giving them complete power over her affairs. In the exercise of that power, while the deceased was still alive, Mr. Laing sought by fixed date claim form dated 24^th June 2002 to recover possession of the property from the respondent. The deceased died on 13^th December 2002. The administrator of the estate (a donee of a power of attorney from Mr. Laing) was substituted as claimant.

9 Mr. Laing accepted in cross examination that at the time the deceased executed the later will she was about 93 years old and was suffering from "age related dementia" but, he claimed, "for the most part, she was lucid and well aware of decisions that she was making on her own behalf." He reframed his testimony to say, "she wasn't suffering from dementia; she was treated for minor dementia, but capacity to make any decisions was not challenged." The judge described this change in testimony as a "somersault" and an attempt "to downplay the effect that this debilitating mental illness may have had on her mental capacity." The judge stated that he found it interesting that Mr. Laing moved from "one having no role in the mutual will or substantial gift under the will to being a co-executor of the estate and to becoming co-beneficiary in both the St. Vincent and Pennsylvania properties. Looking at the events and circumstances in its totality, I find the role of Mr. Laing strange if not suspicious."

10 Testamentary capacity was not in issue in these proceedings and therefore the validity of the later will does not arise for determination. However, the conscionability of the withdrawal from the promise is in issue and it cannot be pretended that there was no likelihood that Mrs. Bute was affected by her dementia and the influence of those around her. It would be farcical in examining the conscience of the deceased in relation to the breach of the promise to leavethe property to the respondent to ignore the possibility that that breach was not the action of the deceased but the action of those around her and the court should at least bear that possibility in mind.

11 The appellant's challenge to the decision of the judge to order that the freehold of the property be transferred to the respondent was made upon the basis that proprietary estoppel gives rise to a wide range of relief and the judge misdirected himself in failing to consider that the appropriate order to make was for the minimum equity that would do justice to the respondent. A much cited treatment inSnell's Equity1 identifies the range of relief that is available to the court as including merely dismissing an action brought by the owner (called O) to enforce his...