Duncombe v Duncombe
| Jurisdiction | Bahamas |
| Judge | Malone, J. |
| Judgment Date | 13 February 1981 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Equity Side No. 197 of 1978 |
| Date | 13 February 1981 |
Supreme Court
Malone, J.
Equity Side No. 197 of 1978
Mr. Wallace Whitfield for the plaintiff.
Mr. J. H. Bostwick for the defendant.
Real property - Ownership
Real property - Possession
The dispute is over the ownership of a parcel of land on the island of Bimini and the parties to the dispute are two of the children of Melvin Duncombe Snr. now deceased.
It is not in question that Melvin Duncombe Snr. Became seized in free simple absolute in possession of a lot of land, which included the land in dispute, by a deed of indenture executed on the 27 th August, 1931 and that he in turn conveyed to his son Melvin Duncombe Jnr. for a like estate in possession fee from encumbrances the portion in dispute by an indenture of the 18 th January, 1949. Melvin Duncombe Jnr. died on the 11 th October, 1964 intestate and without issue.
On the 21 st December, 1964 Leslie Duncombe, the heir at law of Melvin Duncombe Jnr. by deed of gift purported to convey the fee simple absolute in possession of the land in dispute to the plaintiff and on the 3 rd August, 1965 purported to convey the said land to the defendant. Those purported conveyances were effected prior to the issue of letters of administration and so prior to the assent of the personal representative to the land being taken into possession and control of the heir at law.
Letters of administration to the estate of Melvin Duncombe Jnr. were granted to the plaintiff on the 4 th October, 1965 and on the 27 th October, 1972 by deed of assent she purported to assent to Leslie Duncombe taking the possession and control of the land in dispute. Subsequently, on the 3 rd January, 1978 the plaintiff by a vesting deed of that date purported as the administration of the estate of Melvin Duncombe Jnr. to convey the land in dispute to herself at the request of Leslie Duncombe for an estate in fee simple absolute in possession.
Here, as in England prior to the 1 st January, 1926, the old canons of descent which in relation to the fee simple were abolished in England by the legislation of 1925 still govern the descent of the fee simple. Here too, as in England, provision is made by statute for the vesting in personal representatives of the estates of deceased persons. The statute here is the Real Estate Devolution Act, chapter 153 which models the English Land Transfer Act, 1897 (60 & 61 Vic. c. 65) and not the later legislature of 1925. So it follows, I think, that the law of the Bahamas is in those particulars the same as was the law of England between 1897 and 1926. Faced with the question in whom vested the legal estate of an intestate deceased pending the appointment of his legal representative, North J. in John v. John [1898] 2 Ch. D. 573 is reported at p. 577 as saying that:– “it remained where the law makes the legal estate go when a man dies intestate, i.e. in the heir at law.”
The same opinion was expressed by Lord Cozons-Hardy, M. R. In re Griggs Ex parte School Board for London [1914] 2 Ch. D. 547 where at p. 552 he said:– “It was argued by counsel that since 1897, it is an offence to abstain from taking out administration, and that heir could not therefore have entered into possession. I am not pressed with the argument; until there is a personal representative, the property vest in the heir.”
When however, a personal representative is appointed to administer the estate, his title by virtue of section 1(1) the Land Transfer Act, 1897 (60 & 61 Vic. c. 65), of which equivalent in the law of the Bahamas is section 3 (1) of Real Estate Devolution Act, chapter 153, relates back to the of death (per Stirling, L.J. In the Goods of Elizabeth Pyrse, Deceased (1904) p. 301). From the foregoing, it is apparent, I think, that the doctrine of relation back applies to the personal representative and not to the heir. So when counsel for the plaintiff evoked that doctrine to support his submission that if the deed of assent of the 27 th October 1972, vested the property in Leslie Duncombe, his deed of gift, thereupon, became effective and conveyed to the plaintiff all the interest he had in the property, counsel, in my opinion was misstating the correct legal position. I, therefore, do not accept his submission. But as the legal estate, prior to the of the appointment of the plaintiff as personal representative was in Leslie Duncombe had he then title to convey the property? I think that question is answered by the following passage from Emmet on Title, 15 th Ed. at pp. 302–303:– “Where death took place after 1897.”
(Here I should interpose to say that the learned author is explaining the position as it existed in England between 1897 and 1926).
“It was provided that any property should vest in the deceased's personal representative. ( Land Transfer Act, 1897 s. 1 (1)). However, despite this, unless and until an administrator was appointed, the legal estate vested in the deceased's heir (see North, J. in John v. John [1898] 2 Ch. 573 and 576 Re Griggs [1914] 2 Ch. 547). Nonetheless, the better view is that the heir could not make a good title without taking a grant, he being in the meantime in the position of a trustee and the...
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