Denise Barnes v Pearl Moxey and Charles Moxey Jr
|Mr. Justice Evans, JA
|07 October 2019
|BS 2019 CA 152
|Court of Appeal (Bahamas)
|SCCivApp. No. 29 of 2019
|07 October 2019
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCivApp. No. 29 of 2019
Lady Sharon Wilson, with Mr. Trevor Lightbourn, Counsel for the Appellant
Mrs. Janet L Bostwick—Dean, with Mr. Tavarrie Smith, Counsel for the Respondents
In the matter of a consultative case stated pursuant to s 16 of the Courts of Justice Act 1947; considered
Civil appeal — Intestacy — Sale of property of which a minor has an interest by a personal representative — Probate and Administration of Estates — Relation back — Sections 10, 22, 28 and 29 of the Administration of Estates Act — Sections 16, 30 and, 41 of the Limitation Act — Sections 11 and 63 of the Probate and Administration of Estates Act
By her Last Will and Testament, dated 9 January 1982, Pearl Leona Moxey (Pearl L) devised her house situated at Boyd Road to her two sons Eddison Moxey (Eddison) and Charles Moxey Sr. (Charles Sr.) as tenants in common. On 1 July 1983 Pearl L died and in March 1987 Probate was granted to Eddison. Eddison lives in Grand Bahama. Charles Sr. lived in the home with his mother, his girlfriend and their two minor children Pearl Moxey and Charles Moxey Jr., the respondents in this appeal. The appellant is the grand-daughter of Pearl L, being the daughter of Barbara Barnes (Barnes), the sister of both Eddison and Charles Sr. Barnes and the appellant lived next door to the subject property.
On 20 January 2003 Charles Sr. died intestate; he was survived by his two minor children, the respondents. A few months later in May 2003 Eddison, as executor of Pearl L's estate, conveyed the property to the appellant. The property was sold to the appellant for $100,000.00. The entirety of the proceeds of sale was purportedly divided into two equal parts; one part to Eddison and the other part to Barnes. A payment of $6,000.00 was given to the respondents. In June 2003 the appellant swore an affidavit in support of stamp duty exemption indicating that the value of the home was $188,000.00. The attorney that acted in the probate of Pearl L's estate also acted for both the vendor and the purchaser in the conveyance transaction.
In May 2014 the respondent Pearl conducted a search of the title to the property. The following year in June 2015 the respondents entered into occupation of the home in reliance on the one half undivided share which, they say, formed a part of their father's estate. The appellant, thereafter, commenced an action in trespass against the respondents.
The Court below held that the appellant holds the property jointly for herself and for the Estate of Charles Sr. as trustee; in essence, she holds Charles Sr. Estate's undivided half interest in trust as tenants in common with her own beneficial interest. The appellant appealed to this Court seeking an order that she was the sole owner of the land by virtue of the May 2003 conveyance and the operation of the Limitation Act.
Held: appeal dismissed; costs to the respondents to be taxed if not agreed.
Where a personal representative desires to sell a property of which a minor has an interest the personal representative is required to seek the approval of the Court or at minimum the approval of the parents or guardian of the minor in question. The Court could give directions which may include putting the child's share of the sale proceeds into a trust until the child reaches the age of majority.
The appellant cannot be considered a bona fide purchaser for value without notice as section 41 of the Limitation Act provides that even if a purchaser was not a party to the fraud or concealment if it is shown that at the time of the purchase he knew or had reason to believe that the fraud or concealment had taken place he would not be an innocent party. In the present case the knowledge of the appellant's attorney must be imputed to the appellant, thereby preventing her from claiming to be a bona fide purchaser for value without notice.
The earliest that the respondents would have been aware that the appellant was laying claim to the subject property was November 2003 when the conveyance was recorded. As such, their limitation period expired in November 2015. The respondents' claim was lodged in August 2015 during the currency of the limitation period.
The law is clear that the duties and powers of a personal representative commence upon the personal representative's appointment. However, the powers of a personal representative relate back to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. The personal representative, however, has no ability to commence a legal action before the court prior to being appointed or authorized by the court.
Judgment delivered by The Honourable
. This is an appeal from the whole of the Ruling of his Lordship Mr. Justice Ian Winder delivered in the court below on 28 January 2019 in action 2015/CLE/gen/00856 wherein he ruled that the appellant holds Lot No. 109, Boyd Subdivision jointly for herself and for the Estate of Charles Moxey Sr.
. The appellant is the grand-daughter of Pearl Leona Moxey (Pearl L) who, at her death, owned the property which is the subject matter of this dispute. The appellant is the daughter of Barbara Moxey-Barnes, daughter of Pearl L.
. The respondents are the grand-children of Pearl L, being children of Charles Moxey Sr., the son of Pearl L, and Ms. Yvette Gooding.
. The background to this appeal is probably best understood by starting with the chronology of events as derived from the pleadings and the evidence at trial and which was set out by the learned judge in his judgment as follows:
“9 Jan 1982 Pearl Leona Moxey (“Pearl L.”) made her Last Will and Testament. In the Will, Pearl L. devised her house situated at Boyd Road (also described as 24 Constitution Drive), the subject of this dispute (“the Property”), to her two sons Eddison Moxey, the Third Defendant by Counterclaim (Eddison) and Charles Moxey Sr. (Charles Sr.) as tenants in common. Eddison was appointed the Executor by the Will.
1 July 1983 Pearl L. died. Charles Sr. continued to occupy the home following the death of his mother. At various times he lived there with his children and the children's mother Camille Yvette Gooding Fieurimond (Yvette). Eddison, at all material times, resided in Grand Bahama.
25 Mar 1987 Administration of the real and personal estate of Pearl L. was granted to Eddison by the Supreme Court of The Bahamas.
29 Nov 2002 Yvette says that she and Pearl were evicted from the home by Barbara Barnes (Barbara) whilst Charles Sr was convalescing at Barbara's home following period of hospitalization. Barbara is sister of Eddison and Charles Jr and resided next door to the property.
20 Jan 2003 Charles Sr. died intestate. At the time of his death he was survived by his two (2) children, Pearl L. C. Moxey (Pearl) and Charles J Moxey Jr (Charles Jr.). Pearl and Charles Jr. say that they occupied the home as children until their father's death. Pearl left the home in November 2002 when evicted with her mother, but Charles Jr continued residing there until his father's death. Pearl was 17 years old and Charles Jr was 16 years old at the time of Charles Sr's death.
3 Feb 2003 Eddison grants power of attorney, irrevocable for 12 months, to Barbara. The PA authorizes her, on his behalf to: (a) Apply for letters of Administration for Charles Sr. (b) To conduct and complete the sale of the Property out of the estate of the late Charles Sr. (c) To receive the proceeds of sale on his behalf.
8 May 2003 Eddison conveyed the Property to the Plaintiff Denise Barnes (Denise) as executor of the Estate of Pearl L. The conveyance cited the Will and the device to Eddison and Charles Jr. and was prepared by Attorney Bridgette Francis Butler. Denise purchased the property for the sum of $100,000 with the assistance of the Finance Corporation of the Bahamas (“Finco”), the Third Party. Francis Butler is the only attorney in the transaction. Denise is the niece of Eddison and Charles Jr. and resided next door with her mother Barbara during Charles' lifetime. The entirety of the proceeds of the sale of the property is purportedly divided into two equal parts. One part to Eddison of $48,107.75 and the other half of $48,107.75 apparently distributed by Barbara (or at her instructions), as she saw fit to settle what she saw as debts of Charles Sr. Payment of $6,000 were given to Charles Jr and to Pearl. Barbara says that she was acting for Eddison as his agent. Among the distributions were payments to herself of $20,246.76 for services, she says, as caretaker.
30 May 2003 Denise gives mortgage of the property to Finco.
19 Jun 2003 Denise swears affidavit, in support of application for stamp duty exemptions, indicating the value of the home was appraised, prior to proposed renovations, at $188,000.
31 Oct 2003 Barbara/Eddison commenced an application for the administration of the estate of Charles Sr. Charles Sr. interest in the Property is listed in the schedule of real property notwithstanding the sale to Denise was completed since May 2003. The sales proceeds in the sum of $48,107.75 is not identified. Application unable to proceed as the interested parties not cleared off.
21 Nov 2003 Conveyance and Mortgage of the Property is lodged for recording.
Circa 2006 Pearl says that she heard Barbara advised
Yvette that the house had been left to the sisters. Yvette's...
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