Davis v Davis

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Williams, L.
• Judgment Date: 22 May 1989
• Neutral Citation: KN 1989 HC 2
• Docket Number: No. 9 Misc. of 1984.
• Date: 22 May 1989

High Court.

Williams, J.

No. 9 Misc. of 1984.

Davis

and

Davis

Will - Applicant (common law wife) claiming half share of property and cash left by deceased — No provision made for her or for wife by husband in his will — Wife and husband separated for several years prior to his death — Wife as defendant/executor resisting claims by applicant (common law wife) property was held on trust for her by deceased as to 1/3 interest.

Appearances:

Constance Mitcham and Lillian Benjamin for the plaintiff

Frederick Kelsick, Charles Wilkin and Elizabeth Kelsick for the defendant

Henry Browne on behalf of the intervener Lucina Reid

Williams, L.

1 With the consent of the parties it was ordered on the 28th October, 1985 that Suit No. 9 Misc. of 1984 be heard in open court. On the 16th March, 1987 it was ordered by consent that suit No. 9 Misc. of 1984 he consolidated with suit. No. 28 of 1986.

2 SUIT N0. 9 MISC. OF 1984:

3 At the outset of the hearing a preliminary point was raised by Mr. Kelsick asking that Miss Mitcham be requested by the court to withdraw from the proceedings as she had filed an affidavit on behalf of the plaintiff in which she had deposed to facts. After hearing arguments on both sides the court suggested to Miss Mitcham that she withdraw from the proceedings rather than have the court make a formal order. Miss Mitcham accepted the suggestion of the court and withdrew. The applicant is 87 years old, she married Rudolph Davis on the 24th December, 1933. Rudolph Davis is now deceased having died on the 9th June, 1983.

4 By a will dated 4th June, 1983, Rudolph Davis made the defendant Maurice Davis, Jnr. his nephew his sole executor, the Will was duly proved by the defendant in the Probate Registry of the Saint Christopher Circuit. The Grant of Probate is recorded in Liber Wills Volume “0” at Folios 185 – 187. Rudolph Davis made no provision in his will for his wife although he had a considerable amount of real property, namely 13 in number, as well as a substantial amount of cash in a savings account at the Royal Bank of Canada, amounting to $158,526.27.

5 By originating summons filed on the 1st May, 1984, supported by affidavit the applicant claimed entitlement to one-half share of the said properties and one-half share of the sum in the said bank account. Counter affidavits were filed by the defendant resisting the applicant's claim. In addition to the affidavits oral evidence was heard in open court, the applicant gave oral evidence on her own behalf and witnesses were called on behalf of the defendant.

6 I have not taken into consideration the contents of the affidavits of Sir Maurice Davis because counsel for the applicant wanted him to make himself available for cross-examination but due to his illness this was not possible. Similarly I have not taken into account the contents of the affidavit of the defendant because counsel for the applicant also wanted him to make himself available for cross-examination and through his counsel he declined to make himself available.

7 On an Intervener summons filed on the 18th May, 1984 the intervener was granted leave on the 16th March, 1987 to appear and appearance was entered on the said date. Lucina Reid appeared as next friend on behalf of her children Charles Rudolph Davis, Claude Mortimer Davis and Caroline Davis. These children were fathered by the deceased. At the date of marriage neither the husband or wife owned any real property, at first they lived in rented premises but later acquired property. The wife was a domestic helper before marriage and for about two to three years after the marriage she continued doing the same work. She earned $5.00 per month as a domestic servant.

8 While living in rented premises at Westbourne Ghaut they opened a bar shop on those premises which was operated by the wife. “This property they later purchased. The wife says it was bought from her savings which came from the bar shop and from ninnies she had saved from her wages as a domestic servant before and after marriage as well as a loan of $700.00 from the husband's father. The property was bought some time during the 1950's at a costs of $3.500.00. She said it was her husband who dealt with the transaction and although the property was purchased jointly by them he had the certificate of title placed solely in his name. In addition to this property they jointly bought other properties and the husband placed all the titles for them his name alone.

9 She said that the money for the purchase of all these properties came from the earnings of both of them. That they both worked and saved. That at one time they had seven fishing boats and her husband used to do fishing. Later they moved to Douglas Street and there she also operated a shop. This was one of the many properties that they had purchased. She said she always gave her husband the proceeds of sale from the shop some of which he put in an account at the bank and from which account he purchased the various properties. She claimed that the various properties which they purchased were rented and the rental from those premises were put in the bank account and used to buy additional properties.

10 She said the money from the shop ran the household and that during the many years she operated the shop she was paid no salary. Her husband bought a truck which he drove and operated himself, also that the bank account was in her husband's name alone. She said that sometime during the 1960's her husband left her but continued living in Basseterre with other women. When they separated her husband closed down the shop at Douglas Street. After the shop was closed he gave her $100.00 from the shop business and on another occasion he gave her $50.00. In 1981 she took him to court for maintenance and up to the year 1983 she received maintenance of $400.00 per month, since then she has received none.

11 The wife's right leg was amputated in 1983 and her left leg was amputated in 1985. She is now unable to work and is confined to a wheel chair. After her husband left her she did washing and laundering for a living and when she could no longer manage that work she returned to domestic work in about 1972 and continued in such work until sometime in 1983. The case for the defendant rested on the evidence of Ivan Kelsick, manager, Shipping Department of S. L. Horsford & Company Limited. He first came to know the deceased in about 1944, when he first knew him he owned a boat in which he transported passengers and cargo from steamers to the dock. He said that about the early 1970's the deceased went into the fishing business and that he owned fishing boats.

12 He further said that in about the early 1970's the deceased bought some trucks from S. L. Horsford & Co. on credit and that the trucks were used to transport sugar from the sugar factory to the pier. He said that the trucks were also used to carry sand and soil for the extension of Golden Rock Airport in about 1974; and sand to fill Ponds Pasture. He further said that between 1940 – 1942 domestic servants were paid about $3.00 per month plus food and in about 1950 – 1955 domestic servants earned about $5.00 per month plus food. The case for the intervener basically is to protect the interest of her children who are beneficiaries under the Will of the deceased.

13 SUIT N0. 28 OF 1986

14 By writ and statement of claim filed on the 20th February, 1986 the plaintiff claimed that she was entitled among other things to ones half undivided share in four properties of the deceased, namely, one property at fond Road, two properties at Stainforth Street and one property at New Pond Site, which properties the deceased had left in his Will to other persons.

15 In her prayer she claimed as follows:–

“And the plaintiff claims:–

• (1) Declaration that the plaintiff is entitled to one-half undivided share in the above-mentioned four properties.

• (2) Declaration that the testator held the above-mentioned 4 properties on trust for himself and the plaintiff in equal shares.

• (3) Declaration that the plaintiff is entitled to one-half share of the proceeds of sale of the aforementioned property situate at the corner of Shepherd and Stainforth Streets.

• (4) Declaration that the sum of $158,526.27 deposited at a savings account at the Royal Bank of Canada was held by the testator in trust as to one-half share for the plaintiff.

• (5) Declaration that the defendant as executor of the will of the testator is not entitled to distribute the plaintiff's share in the aforesaid properties and moneys to himself and the said beneficiaries.

• (6) An Order that the defendant pay to the plaintiff one-half s share of $158,526.27 on savings account at the Royal Bank of Canada.

• (7) An Order that the plaintiff be paid one-half of the proceeds of sale of property situate at the corner of Shepherd and Stainforth Streets.

• (8) (i) An Order for the division in equal shares of property situate at Pond Road between the plaintiff and the said Charles Rudolph Davis.

  • (ii) An Order for the division in equal shares of property situate at Stainforth Street known as the Galloway property between the plaintiff and the said Caroline Louisa Davis.

  • (iii)An Order for the division in equal shares of property situate at New Pond site between the plaintiff and the defendant.

• (9) An Order that the defendant do give account of all the said properties and moneys coming into his hands as executor of the testator.

16 The defendant in his defence contested the respective claims of the plaintiff. The plaintiff is a domestic servant. She said that she started living with the deceased at Pond Road by the public bath around 1960. She gave birth to two children for the deceased, namely Icilma Bridgette Davis born on 22nd April, 1959 and Charles Randolph Davis born on the 12 ^th April, 1964. She said that she and the deceased got in friendship...