Nature of Co-Ownership
Cases on Severance
Butterly v McKechnie
Nisi Prius.
22 November 1901
[1901] 35 I.L.T.R 226
Johnson J. without a Jury.
Nov. 22, 1901
Joint tenants for a term of years—A greement for sub-lease of entire premises by one joint tenant reserving rent to himself—Subsequent confirmation by other joint tenant—No severance effected—Landlord and Tenant (Ir.) Act, 1860, ss. 3, 4, 42.
Where one of two joint tenants of premises, held by them for a term of years, entered into an agreement to grant a sub-lease of the entire premises at a rent payable to himself, and the other joint tenant subsequently confirmed the letting by endorsement in the fold of the agreement, and the joint tenant party to the agreement died:
Held, that the sub-lease did not operate as a severance, the subsequent confirmation having the same effect as if the confirming party had executed the agreement as a co-lessor, and that he as surviving joint tenant was entitled to receive the whole rent reserved by the agreement.
Flynn v. Flynn.
[1930] IR 340
Sullivan P.
SULLIVAN P. :
28 May
On the 13th February, 1884, a memorandum of agreement was signed by Patrick Flynn, Thomas Flynn, and Catherine Dwyer. It recites that a marriage is intended to be solemnised between the said Thomas Flynn and Catherine Dwyer, and that upon the treaty for the said marriage it was agreed:(1) That the said Catherine Dwyer should pay to the said Patrick Flynn part of her fortune, namely, the sum of £300, and should pay the remainder of her fortune to her intended husband, Thomas Flynn; and (2) that the said Patrick Flynn, in consideration of the said fortune and of the said intended marriage, should assign and make over to his son, Thomas Flynn, and his said intended wife the whole title and interest in the lands of Coolmoyne, containing 40 acres, which he held as tenant from year to year, together with the buildings thereon, household furniture, farming implements, and stock. The said memorandum further declares that, for the considerations aforesaid, the said Patrick Flynn agreed to assign, make over, and surrender to his son, Thomas Flynn, and his intended wife, in as full a manner as he held the same, the lands of Railstown, then in his occupation, with all stock and farming implements thereon. The memorandum concludes with an agreement by the parties to execute any further or other document which might be considered necessary either in law or equity further to assure and secure all the parties in their respective rights according to the true intent and meaning of the memorandum.
Thomas Flynn and Catherine Dwyer married shortly after the execution of that agreement, and resided on the lands of Coolmoyne until the death of Thomas Flynn, in August, 1921. No further assurance of the lands was ever called for or executed. There were six children born of the marriage, and they have continued up to the present to live at Coolmoyne.
In the year 1900 Catherine Flynn purchased the lands of Railstown from the Irish Land Commission, and on the 20th March, 1900, she was duly registered as owner thereof in fee-simple, subject to equities.
In the year 1911 Thomas Flynn purchased the lands of Coolmoyne from the Irish Land Commission, and on the 17th February, 1912, was registered as owner thereof in fee-simple, subject to equities. No evidence is available as to the circumstances in which either of these purchases was negotiated and made.
On the 19th July, 1921, Thomas Flynn made his will, whereby he bequeathed the farm at Coolmoyne, with the stock, farming implements, &c., to his son, Patrick Flynn, charged with the payment of the sum of £20 a year for ten years to his son, James. The said Thomas Flynn died on the 2nd August, 1921.
The present proceedings were brought by his widow, Catherine Flynn, to establish her title to the lands of Coolmoyne as against her son, Patrick Flynn. She claims that the effect of the agreement of the 13th February, 1884, was to constitute a joint tenancy in equity in Thomas Flynn and herself in the lands of Coolmoyne, and a similar joint tenancy in the lands of Railstown; that such joint tenancy remained unsevered at the death of her husband, and that, therefore, she became entitled as survivor to the entire interest. The defendant, Patrick Flynn, admits that the agreement of 13th February, 1884, created a joint tenancy in equity in the lands of Coolmoyne, and a similar joint tenancy in the lands of Railstown, but he contends that each of these joint tenancies was severed prior to the death of Thomas Flynn.
As regards the lands of Coolmoyne, with which alone this suit is conversant, Mr. Cherry contends that, irrespective of any agreement between the parties, the joint tenancy was necessarily severed when Thomas Flynn purchased the fee-simple, and was registered as owner; the unity of title and unity of interest on which a joint tenancy depends being, it is said, thereby terminated. In support of his argument Mr. Cherry relied on Wiscot’s Case (1) and Conolly v. Conolly (2). In Wiscot’s Case (1) it was held that where one of two joint tenants for life acquires the entire reversion the joint tenancy is severed; though “when the fee is limited by one and the same conveyance, there the one may have a fee-simple and the other an estate for life jointly; but when they are first tenants for life, and afterwards one of them doth get the fee-simple, or the fee-simple doth descend to one, there the jointure is severed.”The decision in Conolly v. Conolly (2) is summarised in the head-note as follows:”A. and B., being entitled as joint tenants to an equitable interest in a chattel term expectant on the death of X., concurred in a deed by which the entire legal interest in the term was vested in A., in trust for X., for life, with an executory limitation over in favour of A. and B. Held: upon the death of X. in the lifetime of A. and B., that the equitable interest in the one undivided moiety to which A. now became entitled in possession was absorbed in the legal estate already vested in him, and that the joint tenancy between A. and B. was thereby severed.” The decision was based on the principle that when legal and equitable estates co-extensive and commensurate come to co-exist in the same person the former absorbs the latter.
I do not think that either of these cases rules the present case. I think that when Thomas Flynn acquired the fee-simple in the lands of Coolmoyne the pre-existing tenancy from year to year in which he and his wife, Catherine Flynn, had a joint interest was extinguished. He acquired the fee-simple subject to equities, and the effect of this was that he took the fee-simple in trust for himself and his wife as joint tenants. The equitable joint tenancy from year to year was gone, but an equitable joint tenancy in fee-simple was created.
It follows that, in my opinion, a severance of the original joint tenancy did not, as a matter of law, result from the purchase of the fee-simple by Thomas Flynn.
There remains the question whether on the evidence we should infer that Thomas Flynn and his wife had agreed to sever the joint tenancies in Coolmoyne and Railstown. Mr. Cherry puts the case thus:Thomas and Catherine were originally joint tenants of both farms; subsequently, one farm is purchased in the sole name of the wife, and later the other farm is purchased in the sole name of the husband; the husband, though on good terms with his wife, purports to dispose of the latter farm as his own, and makes no provision for her. Mr. Cherry says that the proper inference to draw from these facts is that the husband and wife agreed that, instead of continuing as joint tenants of both farms, each should become the sole owner of one farm. I find it difficult to draw that inference in view of the fact that the wife was examined as a witness in the Circuit Court, and, though the question was not put to her directly, I read her evidence as negativing any such agreement. I share the doubt expressed by the Circuit Judge, but, on the whole, I think he was right in declining to hold that there had been an agreement to sever the joint tenancy.
I am, therefore, of opinion that this appeal should be dismissed.
HANNA J. :
I am of opinion that the evidence in this case is incomplete and unsatisfactory, so much so, that it may be impossible to justly determine the respective rights of the parties. We might be then left to decide it on what may prove to be a pure hypothesis, namely, that the only question open is the effect in law of the separate registration of the two farms. I should have liked to have had before the Court the history and nature of the tenancies in the two farms, at least from 1884. I was at one time inclined to the view that the case should be remitted for rehearing on further evidence, but, with some hesitation, I have come to the conclusion that, save under very special circumstances, it is the duty of the High Court to decide the case onthe notes, and not to direct proofs for the parties. It would be an ill-advised precedent.
As I say, it is difficult to arrive at the complete facts in this case. Patrick Flynn, of Coolmoyne, was the owner of two farmsCoolmoyne, which is the subject of this litigation, and Railstown, portion of the latter being held by a son, Edmond, at a rent of £13. Coolmoyne seems to have been the home farm, where the family lived. He (Patrick Flynn) had a son, Thomas, who in 1884 intended to marry the plaintiff, Catherine, and on the intended marriage an agreement in the nature of a proposed marriage settlement was made on the 13th February, 1884. By this agreement the plaintiff, who was then Catherine Dwyer, agreed to pay £300, portion of her fortune to Patrick Flynn, her father-in-law, and he, in consideration therefor, agreed to make over to his son, Thomas, and the plaintiff, first, the farm of Coolmoyne, with houses, furniture, chattels, and stock, reserving to himself and his wife a right of residence; and, secondly, he also agreed to make over to Thomas and the plaintiff the Railstown farm and that portion held by his son, Edmond, subject to the payment of £13 a year by him to Thomas.
This agreement created the plaintiff and her husband equitable joint tenants of each of the farms. The marriage took place a week after the agreement.
There is no evidence from which one could infer the tenure of the farms, or the arrangements of the parties, or the working of the farms until 1900.
On 20th March, 1900, the farm of Railstown was bought out under the Land Purchase Acts by the plaintiff, Catherine, in her own name, and she became registered as owner in her own name in fee-simple, subject to equities. There is no evidence how, if at all, that was arranged as between the parties then entitled, or why this course was taken. There is no evidence as to whether it involved any change in the tenure or the occupation of the farms. It would, however, appear that the plaintiff paid the receivable orders on the Railstown farm, as well as the rent of Coolmoyne, as her husband was advanced in years, and, I would gather, almost illiterate, and did no business. In more recent years the children would do it.
This state of affairs continued until 1912, when the husband bought out Coolmoyne under the Land Purchase Acts in his own name, and became registered owner in fee, subject to equities. This was on the 17th February, 1912. We have no evidence why this was done, save that the plaintiff admits that she knew that her husband was buying out Coolmoyne, but she did not know it was being registered in his own name. There is no evidence that there was even then any partition or change in the working of the farms.
The husband died on 2nd August, 1921, and by his will, dated 19th July, 1921, left the farm of Coolmoyne to his son, Patrick. There is no evidence of the history of the farms since 1921, but now Patrick claims to hold Coolmoyne on the basis of a severance of the joint tenancy therein during the lifetime of his father, which is denied by the plaintiff.
It seems to me that there are three propositions of law relevant to the subject of the severance of a joint tenancy that bear on this case.
First, a severance may be effected by agreement, either to be proved expressly or to be inferred from the acts of the parties. This involves intention.
Secondly, where such an agreement is relied upon, the burden of establishing it lies on the person alleging a tenancy in common.
Thirdly, a severance may be effected without intention by the execution by one of the joint tenants of an instrument inconsistent in its nature and effect with the continuance of the joint tenancy.
The first proposition is established by the decision of the Court of Appeal in In re Hayes’ Estate (1), reversing Wylie J. The question was whether an agreement entered into by persons who were joint tenants of real estate for the sale of their interest under the Land Purchase Acts effected a severance. Sir James Campbell L.C. held that, in the absence of evidence of any intention on the part of the joint tenants to sever, the document itself was not sufficient to have that effect, even though it changed the subject-matter of the tenancy from land into money. Ronan L.J. said, at p. 210: “I can see no evidence of any intention that their title or rights inter se to the stock should be in any way different from their rights to the land; and I decline to presume an intention on their part to effect a severance in the absence of any evidence of such an intention.”
The second proposition is partly a general principle of burden of proof and partly covered by the view expressed in Partrichev. Powlet (2)that conversion must be actual, and not arising from mere inference.
The third proposition is established by the view expressed by Lawrence J. in In re Gardner; Ellis v. Ellis (3); and also by the view of the law implied in the decision in Conolly v.Conolly (4), and in In re Armstrong (5).
I agree with the view of the Circuit Judge that the evidence of any agreement is unsatisfactory. The dealing with Railstown might be interpreted as some evidence of an agreement to partition the holdings, but it is not unequivocal, and there is no evidence that an actual partition was ever acted upon in the working of the farms or in any change of possession. A period of twelve years elapsed between the two registrations. They may be quite independent transactions, with no bearing on each other, and are quite unexplained. In this position of theevidence I cannot hold that there was any severance by agreement. The defendant, who is alleging the tenancy in common, has not discharged the burden of proof.
As to the remaining point, I cannot hold that the mere registration of one equitable joint tenant of the holding in his sole name, such registration being subject to equities, would in itself effect a severance. It is not inconsistent with the continuance of the notion of joint tenancy. If there were evidence that it was done in pursuance of an agreement it would be conclusive.
As the interests of the parties under the agreement of 1884 were equitable, and the registration was subject to equities, the respective equitable titles and interests of the parties must be still derived therefrom as the joint source. There is no suggestion that the unity of possession was ever severed.
The appeal should be dismissed with costs.
In re Armstrong.
[1920] IR 242
Ross J. Land Judge. 242
SIR JAMES CAMPBELL C. :”
In this case the owner of an estate initiated proceedings for a sale to the Congested Districts Board, but he died before the sale was carried out. The property then became vested in six daughters of Sir Edmund Samuel Hayes, who died in 1860, as joint tenants. These six ladies adopted the proposal that had been made by their predecessor in title, with the result that the necessary proceedings ensued, and the property was sold. A question then arose in regard to the distribution of the purchase-money and the payment of the bonus. In the interval two of the joint owners hud died. Of the four remaining, one is represented by Mr. Murphy, and she has appealed from the decision of Mr. Justice Wylie, in which he held that the effect of the transaction had been to sever the joint tenancy in the lands. Mr. Justice Wylie tells us plainly that his conclusion is based on the general proposition that a contract of sale by joint tenants of necessity, per se, effects a severance, and for this proposition he relies upon the decision in Kingsford v. Ball (1). So far as it is possible to ascertain from the meagre relation of the facts and from the judgment what the precise point decided in that case was, it seems to me that it cannot be relied upon for such a universal proposition. It is peculiar in this respect: that between the date of the contract of sale and its ultimate completion the joint owners had entered into an agreement inter se, which undoubtedly had the effect of severing the joint tenancy; but when they came to complete the contract they relied upon their title as joint tenants, ignoring or concealing the fact that in the interval that joint tenancy had been severed. Further, it appears that the purchase-money in respect of the contract of sale was divided between them, and in view of these facts it seems to me there was no alternative but to hold that they had not only in fact severed the joint tenancy, but had intended to do so.
In this case I can find no evidence of any intention on the part of the joint tenants to sever. At first I thought there might be some weight in the suggestion that by reason of their deliberate act in changing the subject-matter of the property from land into money, an inference might be drawn that severance was intended, as, generally speaking, money might reasonably be supposed to be held by the owners thereof in their respective shares and proportions. On the other hand, the purchase-money in this case is represented by stock, and there is he reason in the nature of things why joint tenants might not be equally well satisfied to hold the stock as joint property just in the same way as if, instead of selling the estate for money, they had exchanged it for other lands, or had received some other consideration instead of money for the purchase-price.
If the facts do not justify the inference that, in regard to the purchase-money, the parties intended that their interest should be severed, I do not see how we can draw any inference in the case of the bonus which follows the purchase-money and its destination, inasmuch as title to the bonus and purchase-money will be in the same persons. This is the short ground upon which I base my judgment. Mr. Walker has suggested that in Sugden’s Vendors and Purchasers the decision in Kingsford v. Ball (1) is treated as laying down the universal proposition for which Mr. Justice Wylie relied upon it as an authority. But the passage in Sugden is almost as obscure as the report of the reasons of Lord St. Leonards for the decision itself, and I cannot draw the inference that the case decided the point at issue here.
I have come to the conclusion that the decision of Wylie J. cannot be supported, and that the appeal must be allowed.
RONAN L.J. :”
In this case six joint tenants of certain land jointly agreed to exchange it for a sum of £27,000 stock. I can see no evidence of any intention that their title or rights inter se to the stock should be in any way different from their rights to the land; and I decline to presume an intention on their part to effect a severance in the absence of any evidence of such an intention. The proper performance of such a contract would be a joint conveyance of the lands by the vendors to the purchaser, and the transfer by him of the stock into the joint names of the vendors. Here the lands are vested in the purchasers by the Laud Commission and the stock is to be transferred by them to the vendors. Surely in the absence of any evidence of a contrary intention it should be transferred to them jointly. This would of course make them joint tenants at law. I can see nothing to prevent its having the same effect in equity. The rights of the parties in equity rest on the principle that equity regards as done that which ought to be done.
O’CONNOR L.J. :”
In this case six persons were joint tenants of an estate; they agreed to sell the estate through the Land Commission; in pursuance of that agreement the estate was sold; Wylie J., in the circumstances, held that they became tenants in common of the purchase-money. I can see no principle upon which the decision can be supported. There was no evidence whatever of any intention to sever the joint tenancy, unless the transaction itself constitutes such evidence. Why should it? Take the converse case. If these six persons had been entitled as joint tenants to a sum of money, and with that money agreed to buy a parcel of land, they would, immediately after they signed the contract, have been equitably entitled to the land as joint tenants, and not as tenants in common. A mere agreement by persons entitled as joint tenants to convert their property from one species to another does not operate to work a severance. It is true that when the transaction comes to be completed they may effect a severance: in the case of money converted into land, by the limitations in the conveyance; in the case of land converted into money, by taking and dividing the money. But there is nothing of that kind here. The case of Kingsford v. Ball (1) has been cited by the respondents. As I read that case, the sum of £10,000, paid by way of deposit, was received by the parties and divided equally between them; this was the most effectual method of severance that could be imagined; and that case, the report of which is somewhat obscure, is therefore no authority in the respondents’ favour. I agree that the appeal should be allowed.
The Passage in Coke explains the reason of the distinction. Clerk v.Clerk (1) is not contra, though it is difficult to understand. There is a dictum of Blackburn J. to the contrary in Cowper v.Fletcher (2), but it was extra-judicial, and the authorities were not before the Court. The marriage of Elizabeth did not effect a severance: Palmer v. Rich (3). The recital in the agreement of 9th April, 1910, is not a recital of an agreement between the sisters, but of the effect of the devise in the will of G. H. Barrett. It does not indicate any intention to alter the effect of that devise, whatever it was.
Poole , for the trustees of the will of Sophia Barrett, deceased:”
The agreement of 9th April, 1910, in itself should be treated as a severing of the property and dividing it between the two sisters. It was either a qualified sale for ten years or a letting for ten years. I do not contend that it is a letting, because there is apparently no agreement by one to hold the land from the other within the meaning of the Landlord and Tenant Act, 1860. There is nothing in the document to suggest that Elizabeth was to be a bailiff or agent. Bacon’s Abridgment, vol. iv, 493, referring to Coke Litt., 188 a, Tudor, 1879 edition, 890, quoting Littleton’s Tenures, 302, refers to Cowper v. Fletcher (2). The report of that case in the Weekly Reporter (4) contains a passage in the judgment of Blackburn J. not referred to in Best and Smith’s reports. This dictum of Blackburn J. is the most modern authority on the question, and is a clear expression of the view of that learned Judge that a transaction such as the Court has here to deal with operated as a severance for all purposes of joint tenancy.
ROSS J. stated the facts as above, and proceeded:”
No question now arises in respect of the first matter. It is plainly a joint tenancy. As Elizabeth Armstrong has survived Sophia, if the joint tenancy has not been severed, she takes it all by survivorship; if it has been severed, then she and Sophia Barrett’s devisee take share and share alike in the residue as tenants in common.
For Elizabeth Armstrong it is contended that the agreement does not constitute a letting; that the relationship of landlord and tenant does not exist between them; that Elizabeth Armstrong was merely a bailiff; that under the agreement she was to receive the rents and profits to pay annuity to her sister, and to pay certain things thereout and to keep the residue; that she was bound to account; that she was merely bailiff or agent to pay the £30 annuity and other outgoings; that this relationship negatives severance; and that the interest in the residue is only modified to the extent to which of necessity it is modified by the agreement, and no further.
I think that this is an artificial and strained construction of the agreement, and that it is in substance a lease for a term of ten years, subject to certain charges and conditions. The agreement is either a partial alienation or a letting. A partial alienation does effect a severance; but, assuming it to be in substance a letting for ten years, does this amount to a severance? If one of two joint tenants assigns his share to a third person, this destroys the unity of title and creates a severance, and creates a tenancy in common between the assignee and the other joint tenant: Littleton’s Tenures, s. 292. But where one of two joint tenants in fee creates a lease for years, it appears that such lease is binding on the other joint tenant after the death of the lessor; but does it effect a severance?
In the case of a term of years held in joint tenancy a lease by one joint tenant for a term less than the residue does sever the joint tenancy. So it has been laid down in Coke Litt. (s. 289, s. 319); but why this should be so is far from clear. It would seem reasonable when an act is done by either joint tenant inconsistent with the chief characteristic of a joint tenancy, namely, survivorship, that such an act should effect a severance. Now a lease must effect the survivorship to some extent, because it is binding after the death of the lessor. We are not, however, left to depend on the ancient authorities, because the matter was considered by Lord Blackburn in the case of Cowper v.Fletcher (1); and he expressed the opinion that the effect of making a separate demise does sever a joint tenancy.
I am of opinion that the agreement referred to did effect a severance, and direct the question to be answered accordingly.
Blackstone put it most succinctly:
… when two or more persons are seised of a joint estate … the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate … This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint tenancy instantly ceases. But, while it continues, each of two joint tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor.
Hammersmith and Fulham LBC v Monk
[1992] 1 AC 478, HL
Lord Bridge of Harwich: My Lords, the issue in this appeal is whether a periodic tenancy held by two or more tenants jointly can be brought to an end by a notice to quit by one of the joint tenants without the consent of the others. It arises for determination in the following circumstances.
.
In a previous decision of the Court of Appeal, Greenwich London Borough Council v McGrady (1982) 81 LGR 288, it was held that a notice to quit given by one of two joint tenants without the consent of the other was effective to determine the periodic tenancy to which it related. Much of the argument before the Court of Appeal in the present case was directed to the question whether the court was free to reach a conclusion at variance with McGrady on the grounds (1) that an earlier decision of the Court of Appeal, Howson v Buxton (1928) 97 LJKB 749, was, as the judge had held, binding authority to the opposite effect; or (2) that, in any event, the decision in McGrady was given per incuriam. The judgment of Slade LJ, with which Bingham LJ agreed, examined these issues very thoroughly and reached the conclusion that Howson v Buxton was not authority for the proposition sought to be derived from it and that McGrady was binding on the court. Nicholls LJ approached the issue more radically and held, both on principle and in reliance on a long line of authority prior to the decision in McGrady, that a joint periodic tenancy could be determined by a notice to quit given by one joint tenant.
Your Lordships are not technically bound by any previous decision and before examining the relevant authorities I think it helpful to consider whether the application of first principles suggests the answer to the question at issue. For a large part of this century there have been many categories of tenancy of property occupied for agricultural, residential and commercial purposes where the legislature has intervened to confer upon tenants extra-contractual periodic tenancy. It is primarily in relation to joint tenancies in these categories that the question whether or not notice to quit given by one of the joint tenants can determine the tenancy is of practical importance, particularly where, as in the instant case, the effect of the determination will be to deprive the other joint tenant of statutory protection. This may appear an untoward result and may consequently provoke a certain reluctance to hold that the law can permit one of two joint tenants unilaterally to deprive his co-tenant of ‘rights’ which both are equally entitled to enjoy. But the statutory consequences are in truth of no relevance to the question which your Lordships have to decide. That question is whether, at common law, a contractual periodic tenancy granted to two or more joint tenants is incapable of termination by a tenant’s notice to quit unless it is served with the concurrence of all the joint tenants. That is the proposition which the appellant must establish in order to succeed.
As a matter of principle, I see no reason why this question should receive any different answer in the context of the contractual relationship of landlord and tenant than that which it would receive in any other contractual context. If A and B contract with C on terms which are to continue in operation for one year in the first place and thereafter from year to year unless determined by notice at the end of the first or any subsequent year, neither A nor B has bound himself contractually for longer than one year. To hold that A could not determine the contract at the end of any year without the concurrence of B and vice versa would presuppose that each had assumed a potentially irrevocable contractual obligation for the duration of their joint lives, which, whatever the nature of the contractual obligations undertaken, would be such an improbable intention to impute to the parties that nothing less than the clearest express contractual language would suffice to manifest it. Hence, in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so. In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result.
Thus the application of ordinary contractual principles leads me to expect that a periodic tenancy granted to two or more joint tenants must be terminable at common law by an appropriate notice to quit given by any one of them whether or not the others are prepared to concur. But I turn now to the authorities to see whether there is any principle of the English law of real property and peculiar to the contractual relationship of landlord and tenant which refutes that expectation or whether the authorities confirm it. A useful starting point is the following passage from Blackstone’s Commentaries, Book II (1766) Ch 9, pp 145–47, which explains clearly how the law developed the concept of a yearly tenancy from the earlier concept of a tenancy at will which gave the tenant no security of tenure:
The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; for that the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connections with the other at his own pleasure. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. And this for the same reason, upon which all the cases of emblements turn; viz the point of uncertainty: determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upona reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land …
The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before-mentioned; and, by a parity of reason, the lessee after the determination of the lessor’s will, shall have reasonable ingress and egress to fetch away his goods and utensils. And, if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter of half-year. And, upon the same principle, courts of law have of late years leant as much
as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case they will
not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other.
I have added emphasis to the phrase ‘from year to year so long as both parties please’ because in its Latin version ‘de anno in annum quamdiu ambabus partibus placuerit’ this same phrase is used repeatedly in a passage from Bacon’s Abridgment, 7th edn, 1832, Vol IV, pp 838-39, which has always been treated as of the highest authority, as apt to describe the essential characteristics of a yearly tenancy.
Hence, from the earliest times a yearly tenancy has been an estate which continued only so long as it was the will of both parties that it should continue, albeit that either party could only signify his unwillingness that the tenancy should continue beyond the end of any year by giving the appropriate advance notice to that effect. Applying this principle to the case of
a yearly tenancy where either the lessor’s or the lessee’s interest is held jointly by two or more parties, logic seems to me to dictate the conclusion that the will of all the joint parties is necessary to the continuance of the interest.
In Doe d Aslin v Summersett (1830) 1 B & Ad 135, the freehold interest in land let on a yearly tenarlcy was vested jointly in four executors of a will to whom the land had been jointly devised. Three only of the executors gave notice to the tenant to quit. It was held by the
Court of King’s Bench that the notice was effective to determine the tenancy. Delivering the judgment, Lord Tenderden CJ said, at pp 140-41:
Upon a joint demise by joint tenants upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole or all so long as he and all shall please; and as soon as any one of the joint tenants gives a notice to quit, he effectually puts an end to that tenancy; the tenant has a right upon such a notice to give up the whole, and unless he comes to a new arrangement with the other joint tenants as to their shares, he is compellable so to do. The hardship upon the tenant, if he were not entitled to treat a notice from one as putting an end to the tenancy as to the whole is obvious; for however willing a man might be to be sole tenant of an estate, it is not very likely he should be willing to hold undivided shares of it; and if upon such a notice the tenant is entitled to treat it as putting an end to the tenancy as to the whole, the other joint tenants must have the same right. It cannot be optional on one side, and on one side only.
Now it was rightly pointed out in argument that part of the reasoning in this passage was dictated by considerations derived from the incidents of joint land tenure at law which were swept away by the reforming legislation of 1925. But this can in no way detract from the validity of the proposition emphasised in the judgment that the yearly tenant of a property let to him by joint freeholders ‘holds the whole of all so long as he and all shall please’. This by itself is a sufficient and independent ground for the conclusion of the court that notice to quit by any one joint freeholder was effective to determine the tenancy. Precisely the same reasoning would apply to the operation of a notice to quit by one of two or more joint yearly tenants.
Summersett’s case was followed in Doe d Kindersley v Hughes (1940) 7 M & W 139 and Alford v Vickery (1842) Car & M 280, both cases in which the validity of a notice to determine a yearly tenancy given to the tenant without the concurrence of one or more of the joint landlords was affirmed. It is interesting that throughout the 19th century there is no reported case in the books where the effect of a notice to quit given by one of two or more joint holders of the tenant’s interest under a yearly or other periodic tenancy was ever called in question. I do not however find this surprising. The law was probably regarded as settled after Summersett’s case, but, in any event, before the advent of statutory protection of tenants’ rights of occupation, in the case of a notice to quit given by one of two or more joint periodic tenants the parties would in most cases have had little incentive to litigate. If the landlord was content that the other tenants should remain, there would have been nothing to litigate about. If the landlord wished to recover possession, he could do so by giving his own notice to quit.
His Lordship then referred to the more recent cases of Howson v Buxton, 97 LJKB 749, Leek and Moorlands Building Society v Clark [1952] 2 QB 788, Greenwich London Borough Council v McGrady 81 LGR 288, Smith v Crayton Estates Ltd 1960 SC 349 and concluded that these cases supported the conclusion of the Court of Appeal.
There are three principal strands in the argument advanced for the appellant. First, reliance is placed on the judgment in Gandy v Jubber (1865) 9 B & S 15, for the proposition that a tenancy from year to year, however long it continues, is a single term, nota series of separate lettings. The passage relied on reads, at 18:
There frequently is an actual demise from year to year so long as both parties please. The nature of this tenancy is discussed in 4 Bae Abr tit Leases and Terms for Years, 7th edn, pp 838, 839, being said to be the work of Gilbert CB. It seems clear that the learned author considered that the true nature of such a tenancy is that it is a lease for two years certain, and that every year after it is a springing interest arising upon the first contract and parcel of it, so that if the lessee occupies for a number of years, these years by computation from time past, make an entire lease for so many years, and that after the commencement of each new year it becomes an entire lease certain for the years past and also for the year so entered on, and that it is not a reletting at the commencement of the third and subsequent years. We think this is the true nature of a tenancy from year to year created by express words, and that there is not in contemplation of lawa recommencing or reletting at the beginning of each year.
It must follow from this principle, Mr Reid submits, that the determination ofa periodic tenancy by notice is in all respects analogous to the determination of a lease fora fixed term in the exercise of a break clause, which in the case of joint lessees clearly requires the concurrence of all. But reference to the passage from Bacon’s Abridgement, 7th edn, vol IV,
p 839, on which the reasoning is founded shows that this analogy is not valid. The relevant passage reads:
A parol lease was made de annon in annum, quamdiu ambabus partibus placuerit; it was adjudged that this was but a lease for a year certain, and that every year after it wasa springing interest, arising upon the first contract and parcel of it; so that if the lessee had occupied eight or ten years, or more, these years, by computation from the time past, made an entire lease for so many years; and if rent was in arrears for part of one of those years, and part of another, the lessor might distrain and avow as for so much rent arrear upon one entire lease, and need not avow as for several rents due upon several leases, accounting each year a new lease. It was also adjudged, that after the commencement of each new year, this was become an entire lease certain for the years past, and also for the year so entered upon; so that neither party could determine their wills till that year was run out, according to the opinion of the two judges in the last case. And this seems no way impeached by the statute of frauds and perjuries, which enacts, that no parol lease for above three years shall be accounted to have any other force or effect than of a lease only at will: for at first, this being a lease certain only for one year, and each accruing year after being a springing interest for that year, it is nota lease for any three years to come, though by a computation backwards, when five or six or more years are past, this may be said a parol lease for so many years; but with this
the statute has nothing to do, but only looks forward to parol leases for above three years to come.
Thus, the fact that the law regards a tenancy from year to year which has continued fora number of years, considered retrospectively, as a single term in no way affects the principle that continuation beyond the end of each year depends on the will of the parties that it should continue or that, considered prospectively, the tenancy continues no further than the parties have already impliedly agreed upon by their omission to serve notice to quit.
The second submission for the appellant is that, whatever the law may have been before the enactment of the Law of Property Act 1925, the effect of that statute, wherebya legal estate in land vested in joint tenants is held on trust for sale for the parties beneficially entitled, coupled with the principle that trustees must act unanimously in dealing with trust property, is to reverse the decision in Summersett’s case, 1 B & Ad 135 and to prevent one of two joint tenants deter-mining a periodic tenancy without the concurrence of the other. It is unnecessary to consider the position where the parties beneficially entitled are different from those who hold the legal interest. But where, as here, two joint tenants of a periodic tenancy hold oth the legal and the beneficial interest, the existence of a trust for sale can make no difference to the principles applicable to the termination of the tenancy. At any given moment the extent of the interest to which the trust relates extends no further than the end of the period of the tenancy which will next expire on a date for which it is still possible to give notice to quit. If before 1925 the implied consent of both joint tenants, signified by the omission to give notice to quit, was necessary to extent the tenancy from one period to the next, precisely the same applies since 1925 to the extension by the joint trustee beneficiaries of the periodic tenancy which is the subject of the trust.
Finally, it is said that all positive dealings with a joint tenancy require the concurrence of all joint tenants if they are to be effective. Thus, a single joint tenant cannot exercise a break clause in a lease, surrender the term or apply for relief from forfeiture. All these positive acts which joint tenants must concur in performing are said to afford analogies with the service of notice to determine a periodic tenancy which is likewise a positive act. But this is to confuse the form with the substance. The action of giving notice to determine a periodic tenancy is in form positive; but both on authority and on the principle so aptly summed up in the pithy Scottish phrase ‘tacit relocation’ the substance of the matter is that it is by his omission to give notice of termination that each party signified the necessary positive assent to the extension of the term for a further period.
For all these reasons I agree with the Court of Appeal that, unless the terms of the tenancy agreement otherwise provide, notice to quit given by one joint tenant without the concurrence of any other joint tenant is effective to determine a periodic tenancy.
An alternative ground advanced in support of the appeal relied on the particular terms of the tenancy agreement entered into by the appellant and Mrs Powell with the council as requiring notice to quit to be given by both joint tenants in order to determine the tenancy. I agree entirely with the reasons given by Slade and Nicholls LJJ, 89 LGR 357 at 373-74, 382, for rejecting this contention.
I would accordingly dismiss the appeal.
Lord Browne-Wilkinson: My Lords, there are two instinctive reactions to this case which lead to diametrically opposite conclusions. The first is that the flat in question was the joint home of the appellant and Mrs Powell: it therefore cannot be right that one of them unilaterally can join the landlords to put an end to the other’s rights in the home. The second is that the appellant and Mrs Powell undertook joint liabilities as tenants for the purpose of providing themselves with a joint home and that, once the desire to live together has ended, it is impossible to require that the one who quits the home should continue indefinitely to be liable for the discharge of the obligations to the landlord under the tenancy agreement.
These two instinctive reactions are mirrored in the legal analysis of the position. In certain cases a contract between two persons can, by itself, give rise to rights and duties incapable of being founded in contract alone. The revulsion against Mrs Powell being able unilaterally to terminate the appellant’s rights in his home is property based: the appellant’s property rights in the home cannot be destroyed without his consent. The other reaction is contract based: Mrs Powell cannot be held to a tenancy contract which is dependant for its continuance on the will of the tenant.
he speech of my noble and learned friend, Lord Bridge of Harwich, traces the development of the periodic tenancy from a tenancy at will. He demonstrates that a periodic tenancy is founded on the continuing will of both landlord and tenant that the tenancy shall persist. Once either the landlord or the tenant indicates, by appropriate notice, that he no longer wishes to continue, the tenancy comes to an end. The problem is to determine who is ‘the landlord’ or ‘the tenant’ when there are joint lessors or joint lessees.
In property law, a transfer of land to two or more persons jointly operates so as to make them, vis a vis the outside world, one single owner. ‘Although as between themselves joint
tenants have separate rights, as against everyone else they are in the position of a single owner:’ Megarry and Wade, The Law of Real Property, 5th edn, 1984, p 417. The law would have developed consistently with this principle if it had been held that where a periodic tenancy has been granted by or to a number of persons jointly, the relevant ‘will’ to continue the tenancy has to be the will of all the joint lessors or joint lessees who together constitute the owner of the reversion or the term as the case may be.
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Despite this flirtation, the law was in my judgment determined in the opposite sense by Doe d Aslin v Summersett (1830) 1 B & Ad 135. The contractual, as opposed to the property, approach was adopted. Where there were joint lessors of a periodic tenancy, the continuing ‘will’ had to be the will of all the lessors individually, not the conjoint will of all the lessors collectively. This decision created an exception to the principles of the law of joint ownership: see Megarry and Wade, 5th edn, pp 421-22.
It was submitted that this House should overrule Summersett’s case. But, as my noble and learned friend, Lord Bridge of Harwich, has demonstrated, the decision was treated throughout the nineteenth century as laying down the law in relation to the rights of joint lessors. It is not suggested that the position of joint lessees can be different. Since 1925 the law as determined in Summersett’s case has been applied to notices to quit given by one of several joint lessees. In my judgment no sufficient reason has been shown for changing the basic law which has been established for 160 years unless, as was suggested, the 1925 legislation has altered the position.
Before 1925 property belonging to two or more persons concurrently could be held by them in undivided or divided shares at law. The Law of Property Act 1925 changed this and requires that, even in the case of joint tenants, they hold the legal estate as joint tenants on trust for themselves as joint tenants in equity: s 36(1). It was suggested that the interposition of this statutory trust for sale has altered the position: since the appellant and Mrs Powell held the legal estate in the periodic tenancy as trustees and trustees must act unanimously, neither of them individually could give a valid notice to quit.
In my view this submission fails. The trust property in question was a periodic tenancy. As between the lessor and the lessees the nature of the contract of tenancy cannot have been altered by the fact that the lessees were trustees. The tenancy came to an end when one of the lessees gave notice to quit. It may be that, as between the lessees, the giving of the notice to quit was a breach of trust, theoretically giving rise to a claim by the appellant against Mrs Powell for breach of trust. Even this seems to me very dubious since the overreaching statutory trusts for sale imposed by the Law of Property Act 1925, do not normally alter the beneficial rights inter se of the concurrent owners: see In Re Warren [1932] 1 Ch 42 at 47, per Maugham J; and Bull v Bull [1955] 1 QB 234. But even if, contrary to my view, the giving of the notice to quit by Mrs Powell was a breach of trust by her, the notice to quit was not a nullity. It was effective as between the lessor and the lessees to terminate the tenancy. The fact thata trustee acts in breach of trust does not mean that he has no capacity to do the act he wrongly did. The breach of trust as between Mrs Powell and the appellant could not affect the lessors unless some case could be mounted that the lessors were parties to the breach,a case which Mr Reid, for the appellant, did not seek to advance. Therefore in my
judgment the 1925 legislation does not affect this case.
For these reasons and those given by my noble and learned friend, Lord Bridge of Harwich, I too would dismiss this appeal.
Lord Brandon of Oakbrook, Lord Jauncey of Tullichettle, and Lord Ackner all concurred.
Burgess v Rawnsley
[1975] Ch 429, CA
Lord Denning MR: Was there a severance of the beneficial joint tenancy? The judge said:
I hold that there has been a severance of the joint tenancy brought about by the conduct of the defendant in asking £750 for her share which was agreed to.
In making that statement the judge made a little slip. She did not ask £750. But it wasa slip of no importance. The important finding is that there was an agreement that she would sell
her share to him for £750. Almost immediately afterwards she went back upon it. Is that conduct sufficient to effect a severance?
Mr Levy submitted that it was not. He relied on the recent decision of WaltonJ in Nielson-Jonesv Fedden [1975] Ch 222, given subsequently to the judgement of the judge here. WaltonJ held that no conduct is sufficient to sever a joint tenancy unless it is irrevocable. Mr Levy said that in the present case the agreement was not in writing. It could not be enforced
by specific performance. It was revocable and was in fact revoked by Mrs Rawnsley when she went back on it. So there was, he submitted, no severance.
WaltonJ founded himself on the decision of Stirling Jin In Re Wilks Childv Bulmer [1891]3 Ch 59. He criticised Hawkesley v May [1956] 1 QB 304 and In Re Draper’s Conveyance [1969]1 Ch 486 and said that they were clearly contrary to the existing well-established law. He
went back to Coke upon Littleton, 189a, 299b and to Blackstone’s Commentaries. Those old
writers were dealing with legal joint tenancies. Blackstone said, 8th edn, 1778, vol II, pp 180, 185:
The properties ofa joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unite of possession: … an estate in
joint tenancy may be severed and desfroyed … by destroying any of its constituent unities.
and he gives instances of how this may be done. Now that is all very well when you are considering howa legal joint tenancy can be severed. But it is of no application today when there can be no severance of a legal joint tenancy;. and you are only considering howa
beneficial joint tenancy can be severed. The thing to remember today is that equity leans against joint tenants and favours tenancies in common.
Nowadays everyone starts with the judgment of Sir William Page Wood VC in Williamsv Hensman (1861) 1 J & H 546, 557…
….
In that passage, Page Wood VC distinguished between severance ‘by mutual agreement’ and severance bya ‘course of dealing’. That shows that a ‘course of dealing’ need not amount to an agreement, expressed or implied, for severance. It is sufficient if there isa course of dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common.I emphasise that it must be made clear to the other party. That is implicit in the sentence in which Page Wood VC says:
… it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.
Similarly, it is sufficient if both parties enter on a course of dealing which evinces an intention by both of them that their shares shall henceforth be held in common and not
jointly. As appears from the two cases to which Page Wood VC referred of Wilsonv Bell,5 Ir
EqR 501 and Jackson v Jackson, 9 Ves Jun 591.l come now to the question of notice. Suppose that one party gives a notice in writing to the other saying that he desires to sever the joint tenancy. Is that sufficient to effect a severance? l think it is. It was certainly the view of Sir Benjamin Cherry when he drafted s 36(2) of the Law of Property Act 1925 [now amended].
…..
The word ‘other’ is most illuminating. It shows quite plainly that, in the case of personal estate one of the things which is effective in equity to sever a joint tenancy is ‘a notice in writing’ of a desire to sever. So also in regard to real estate.
Taking this view, I find myself in agreement with Havers Jin Hawkesley v May [1956] 1 QB 304, 313-14, and of Plowman Jin In Re Draper’s Conveyance [1969] 1 Ch 486. I cannot agree with Walton J [1975] Ch 222 at 234-35, that those cases were wrongly decided. It would be absurd that there should be a difference between real estate and personal estate in this respect. Suppose real estate is held on a joint tenancy on a trust for sale and is sold and converted into personal property. Before sale, it is severable by notice in writing. It would be ridiculous if it could not be severed afterwards in like manner. I look upon s 36(2) as declaratory of the law as to severance by notice and not as a new provision confined to real estate. A joint tenancy in personal estate can be severed by notice just as a joint tenancy in real estate.
It remains to consider Nielson-Jones v Fedden [1975] Ch 222. In my view it was not correctly decided. The husband and wife entered upon a course of dealing sufficient to sever the joint tenancy. They entered into negotiations that the property should be sold. Each received £200 out of the deposit paid by the purchaser. That was sufficient. Furthermore there was disclosed in correspondence a declaration by the husband that he wished to sever the joint tenancy; and this was made clear by the wife. That too was sufficient.
I doubt whether in In Re Wilks, Child v Bulmer [1891] 3 Ch 59 can be supported. A young man who had just become 21 applied to the court to have one third of a joint fund paid out to him. He died just before the application was heard. Stirling J held that, if he had died just after, there would have been a severance: but, as he died just before, there was not. Ironically enough too, the delay was not on his side. It was the delay of the court. Nowadays, I think it should have been decided differently. The application was a clear declaration of his intention to sever. It was made clear to all concerned. There was enough to effect a severance.
It remains to apply these principles to the present case. I think there was evidence that Mr Honick and Mrs Rawnsley did come to an agreement that he would buy her share for £750. That agreement was not in writing and it was not specifically enforceable. Yet it was sufficient to effect a severance. Even if there was not any firm agreement but only a course of dealing, it clearly evinced an intention by both parties that the property should henceforth be held in common and not jointly.
On these grounds I would dismiss the appeal …
Browne LJ: Mr Levy conceded, as is clearly right, that if there had been an enforceable agreement by Mrs Rawnsley to sell her share to Mr Honick, that would produce a severance of the joint tenancy; but he says that an oral agreement, unenforceable because of s 40 of the Law of Property Act 1925, is not enough. Section 40 merely makes a contract for the disposition of an interest in land unenforceable by action in the absence of writing. It does not make it void. But here the plaintiff is not seeking to enforce by action the agreement by Mrs Rawnsley to sell her share to Mr Honick. She relies upon it as effecting the severance in equity of the joint tenancy. An agreement to sever can be inferred froma course of dealing (see Lefroy Bin Wilsonv Bell (1843) 5 Ir Eq R 501 at 507 and Stirling Jin In Re Wilks, Childv Bulmer [1891]3 Ch 59) and there would in such a case ex hypothesi be no express agreement but only an inferred, tacit agreement, in respect of which there would seldom if ever be writing sufficient to satisfy s 40. It seems to me that the point is that the agreement establishes that the parties no longer intend the tenancy to operate asa joint tenancy and that automatically effectsa severance. I think the reference in Megarry and Wade, The Law of Real Property, 3rd edn, 1966, pp 418, 419 to specifically enforceable contracts only applies where the suggestion is that the joint tenancy has been severed by an alienation by one joint
tenant toa third party, and does not apply to severance by agreement between the joint tenants …
The result is thatI would uphold the county court judge’s judgment on his second ground, namely, that the joint tenancy was severed by an agreement between Mrs Rawnsley and Mr
Honick that she would sell her share to him for £750. In my view, her subsequent
repudiation of that agreement makes no difference. I would dismiss the appeal on this ground.
Cawley v Lillis
[2011] IEHC 515
Judgment of Miss Justice Laffoy delivered on 6th day of December, 2011.
1. Factual background
1.1 Celine Cawley (the Deceased) died on 15th December, 2008. She was survived by her husband, the defendant, and her daughter, the third plaintiff (the Beneficiary), who was her only issue. When these proceedings were initiated by special summons which issued on 15th June, 2010, the Beneficiary was a minor, having been born on 24th November, 1992. By order of the Court (Laffoy J.) made on 27th June, 2011, it was ordered that the Beneficiary, who had attained her majority, be joined as a co-plaintiff in these proceedings.
1.2 The Deceased died testate, having executed her last will and testament on 7th June, 1993. By her said will the Deceased appointed the defendant to be sole executor thereof. She devised and bequeathed all of her property to the defendant for his own use and benefit absolutely and appointed him sole residuary legatee. However, the Deceased made alternative provision in her will, which was to apply should the defendant predecease her or should he not survive her by thirty days. Should either of those events occur, the Deceased appointed the first and second plaintiffs (the Personal Representatives) to be executors and trustees of her will and she directed that they should hold the whole of her estate upon the trusts set out.
1.3 On 29th January, 2010 the defendant was convicted after a trial by a Judge sitting with a jury at the Central Criminal Court of the manslaughter of the Deceased. On 5th February, 2010 he was sentenced to a period of six years and eleven months imprisonment having been so found guilty, the said sentence to commence on 4th February, 2010. Not having appealed against conviction or sentence, the defendant is currently serving the term of imprisonment.
1.4 The conviction of the defendant for the manslaughter of the Deceased has certain implications in relation to the distribution of the estate of the Deceased by virtue of the application of s. 120 of the Succession Act 1965 (the Act of 1965). Sub-section (1) of s. 120 provides:
“A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.”
After, in the succeeding sub-sections, providing for other circumstances in which persons are excluded from succeeding to the estate of a deceased person, sub-section (5) of s. 120 provides:
“Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased.”
By application of those provisions, the defendant is precluded from succeeding to any interest in the estate of the Deceased. Accordingly, the Beneficiary, being the only issue of the Deceased and having reached the age of eighteen years, is solely beneficially entitled to the residuary estate of the Deceased under the trusts declared in her will.
1.5 Subsequent to his conviction, the defendant executed a renunciation whereby he expressly renounced his right to probate of the will of the Deceased. On 24th March, 2010 letters of administration with the said will annexed of the estate of the Deceased were granted by the Court to the Personal Representatives, being the persons appointed by the Court pursuant to an order of the Court (O’Neill J.) dated 1st March, 2010 made pursuant to s. 27(4) of the Act of 1965. The defendant acknowledged that he had no entitlement to the assets of the Deceased, that is to say, assets that were held by the Deceased in her sole name.
1.6 The issues raised in these proceedings relate to assets which were not held in the sole name of the Deceased but were held in the joint names of the Deceased and the defendant, which will be referred to collectively as “the joint assets”. In summary those joint assets are the following:
(a) The former family home of the Deceased and the defendant known as Rowan Hill, at Windgate Road, Howth in the County of Dublin, which is registered on Folio 31534F of the Register of Freeholders, County Dublin (Rowan Hill). On 16th February, 2000 the Deceased and the defendant were registered as full owners with absolute title on the said Folio. The most recent valuation of Rowan Hill which has been put before the Court was carried out by Sherry Fitzgerald on 1st November, 2011. The value ascribed to the property at that date was €750,000. However, the opinion was expressed by the valuer that, “if the house had no unfortunate history”, the value would be in the region of €1m to €1,100,000. From the submissions made at the hearing of the proceedings on 16th November, 2011, it is clear that both sides are ad idem that the current value of Rowan Hill is in the region of €750,000 to €800,000. I note from the correspondence put in evidence, and in particular from the letter of 17th May, 2011 from the plaintiffs’ solicitors to the defendant’s solicitors, and also from the written submissions of counsel for the plaintiffs, that, while a charge is still registered against Folio 31534F, it was discharged before the death of the Deceased.
(b) A dwelling house, 32, Tramway Court, Sutton, County Dublin (32, Tramway Court). The title to 32, Tramway Court is an unregistered title and the property was acquired by the Deceased and the defendant as joint tenants in fee simple by virtue of a conveyance dated 25th January, 2002. Sherry Fitzgerald put a value of €220,000 on that property as at 1st November, 2011. Once again, it appears that both sides are ad idem as to the current market value of that property (in the region of €190,000 to €220,000), which is let to tenants. I note that a mortgage raised in connection with the acquisition by the Deceased and the defendant of this property was also discharged before the death of the Deceased.
(c) Two bonds in joint names, which appear to have a current value in the region of €45,000.
(d) Two joint bank accounts, one with Permanent TSB and the other with Bank of Ireland, which had credit balances aggregating approximately €24,500 at the date of the death of the Deceased, but which appear to have been operated by the defendant after that date.
I have no doubt that issues will arise in relation to the value of the joint assets consequential on the outcome of these proceedings. For example, the balance on one of the accounts referred to at (d) above has reduced since the death of the Deceased and, apparently, the other account is overdrawn. While I have recorded those facts, it is important to emphasise that the Court is not concerned with that type of detail on this application.
1.7 What is of significance is that it is common case that the properties Rowan Hill and 32, Tramway Court remained vested in the Deceased and the defendant as joint tenants at the date of the death of the Deceased, not as tenants in common.
1.8 A lot of other factual matters were averred to in the various affidavits filed on the special summons: the affidavits of the second plaintiff sworn on 18th June, 2010 and 16th November, 2010; the affidavits of the defendant sworn on 1st November, 2010 and 20th January, 2011; and the affidavit of the Beneficiary sworn on 28th June, 2011. Conflicts of evidence arise on the affidavits. However, in my view, the facts which I have outlined above are the only facts which are relevant to the determination of the issues which are before the Court and there is no conflict as to those facts.
1.9 Finally, the Court was informed that the Deceased and the defendant jointly owned real property in France, which is the subject of proceedings in that jurisdiction. Those proceedings have no bearing on the issues before the Court.
2. The questions to be determined by the Court
2.1 The questions which the plaintiffs have requested the Court to answer, arising out of the administration of the estate of the Deceased, in the events which have happened, are as follows:
(A) In circumstances where one joint tenant causes the death of the other joint tenant, does the right of survivorship operate?
(B) If the answer to question (A) above is in the negative, is the estate, right, title and interest of the surviving joint tenant forfeit?
(C) If the answer to question (B) above is in the affirmative, does the interest that is forfeit pass to the estate of the Deceased joint tenant?
(D) If the answer to question (A) is in the negative and the answer to question (C) is in the negative, is a severance of the joint tenancy effected in all the circumstances?
(E) If the answer to question (D) above is in the affirmative, is it necessary to conduct an inquiry into the contributions made by the joint tenants in relation to the beneficial entitlement of each co-owner?
(F) What is the interest of the defendant (if any) in the properties held jointly in all the circumstances?
2.2 In addition to the foregoing questions, the reliefs sought by the plaintiffs on the special summons include the following:
(a) the determination of any other question arising in relation to the matters in the proceedings as to the Court may seem proper;
(b) an order directing all necessary accounts, directions and inquiries; and
(c) if necessary, an order directing an inquiry and account in relation to the contributions to the acquisition of the properties owned jointly by the Deceased and the defendant and the funds standing to the credit of the joint accounts (i.e., the joint assets).
Further or other consequential orders and reliefs are sought, together with an order providing for the costs of the proceedings.
2.3 Apropos of question (E) and the necessity or otherwise to direct an inquiry or account in relation to the contributions to the acquisition of the joint assets, my understanding of the position adopted by both sides at the hearing was that, not only was it accepted that Rowan Hill and 32, Tramway Court were held as joint tenants by the Deceased and the defendant at the date of the death of the Deceased, but it was also common case that, in the event of a finding of severance, the estate of the Deceased and the defendant would each become entitled to an undivided moiety of the properties and funds. Accordingly, at this juncture, I do not propose addressing question (E) or the necessity for an account or inquiry as sought in the terms set out at paragraph (c). If my understanding as to the position of the plaintiffs is incorrect, subject to the observations at the end of this judgment, if necessary, I will hear further submissions on this aspect of the matter. However, as it was not alluded to at the hearing, I would remind the parties that the Deceased and the defendant were husband and wife when the properties were acquired and the bonds and the bank accounts were put in place. That being the case, the equitable doctrine of advancement may come into play, although, having regard to the evidence as to the respective financial strengths of the Deceased and the defendant, the caveat issued by Professor Delany in Equity and the Law of Trusts in Ireland (5th Ed.) at p. 172 may be relevant.
3. The respective positions of the parties in outline
3.1 Counsel for the plaintiffs submitted that the principle to which there was given statutory force in s. 120(1) of the Act of 1965 had been recognised at common law before that statutory provision was enacted. The rationale underlying the principle embodied in the provision is that to allow a person who causes the death of another to benefit from the assets of the deceased would mean that that person would benefit from his or her crime, which is contrary to public policy. Counsel cited a number of authorities in support of that proposition (Amicable Society for a Perpetual Assurance Office v. Bolland & Ors. [1830] II Dow & Clark 630; Cleaver v. Mutual Reserve Fund Life Association [1892] 1 QB 147; and In the Estate of Crippen [1911] P 108). On the basis of the public policy imperative, counsel for the plaintiffs submitted that, by analogy to s. 120(5) of the Act of 1965, the defendant should be deemed to have predeceased the Deceased and that, in consequence, the joint assets, which had been formerly jointly owned by the Deceased and the defendant, should pass to the estate of the Deceased. It was submitted that the approach advocated fits the factual matrix, in that the Deceased was approximately five years younger than the defendant and, as a woman, as a matter of probability, she would have survived the defendant and become solely entitled to the joint assets by right of survivorship. Therefore, it was argued, if the defendant were to acquire any interest in the joint assets, he would, in effect, be benefiting from his crime.
3.2 Counsel for the plaintiffs did, however, recognise that there are authorities from other common law jurisdictions under which it has been held that, when the death of one joint tenant was caused by the other joint tenant, the joint tenancy was severed. An alternative approach, which has been adopted in other common law jurisdictions, was to treat the person who caused the death as holding the property on a constructive trust for himself or herself and the estate of the deceased person. It was urged on behalf of the plaintiffs that, if the Court were to find that the estate of the Deceased is not solely entitled to the joint assets, the Court should favour the severance approach rather than the constructive trust approach. Further, it was submitted that, in appropriating the properties and funds to the estate of the Deceased and the defendant, the Court should have regard to the fact that, because of the act of the defendant, the value of Rowan Hill has diminished. However, it was recognised that that argument may be for another day.
3.3 Counsel for the defendant did not contest the fundamental public policy principle that a person should not benefit from his own crime. However, he departed from the thrust of the case which had been made in the affidavits filed on behalf of the defendant, which was that the defendant became solely beneficially entitled to the joint assets and that the estate of the Deceased had acquired no interest in them. In effect, for the first time, at the hearing it was conceded on behalf of the defendant that he was not solely beneficially entitled to the joint assets. That concession was made late in the day, notwithstanding that a proposal was made on behalf of the plaintiffs in an open letter dated 17th May, 2011 to the defendant’s solicitors that, notwithstanding their belief that there was legal argument to the effect that in all the circumstances the estate of the Deceased should be entitled to one hundred per cent of the joint assets, in an effort to resolve the matter, the plaintiffs would agree to the question raised on the special summons being answered on the basis that there was a severance of the joint tenancy. Accordingly, the position adopted on behalf of the defendant at the hearing was that the joint tenancy terminated on the death of the Deceased caused by the defendant’s wrong, in consequence of which either –
(a) the defendant holds the joint assets on a constructive trust for the estate of the Deceased and himself, or
(b) the joint tenancy in the joint assets has been severed, so that the estate of the Deceased is entitled to one half share thereof and the defendant is entitled to the other one half share.
In support of that argument counsel for the defendant submitted that the defendant had vested rights in the joint assets subject to the operation of the jus accrescendi, which depended on which of the joint tenants died first. Those rights were property rights which enjoyed the protection of Article 40 of the Constitution. The defendant cannot be penalised further by being excluded from his property rights, which he enjoyed for eight to nine years, by being forced to forfeit them, it was submitted.
3.4 On the issue of whether the Court should adopt the severance approach or the constructive trust approach, counsel for the defendant submitted that it would be more convenient if the share of the estate was arrogated to the estate, so that the Personal Representatives may administer it. However, he stressed that the defendant is entitled to an undivided moiety or half share of the joint assets. He also submitted that to make an adjustment on the basis of the alleged diminution in value of Rowan Hill would constitute a penalty on the defendant, and he made the point that, in any event, property valuations fluctuate from day to day.
4. The issues
4.1 Having regard to the submissions made at the hearing, in my view, the primary issues for determination by the Court are:
(a) whether, as contended on behalf of the plaintiffs, the entirety of the joint assets form part of the estate of the Deceased and the defendant has no interest in, or entitlement to, them or any part thereof; or
(b) whether –
(i) severance occurred on the death of the Deceased, so that the estate of the Deceased and the defendant are equally entitled to the joint assets, or,
(ii) alternatively, the joint assets have accrued to the defendant solely but, as to a moiety thereof, are held by him on a constructive trust for the estate of the Deceased.
4.2 The resolution of those issues primarily turns on the application of established principles of law and equity in the area of real property law, which is highly technical, rather than the exercise of discretion by the Court.
5. The law: general observations
5.1 Apart from a newspaper report of a Circuit Court action in 1998, counsel for the plaintiffs was unable to point to any case in this jurisdiction in which the issues which arise in this case were considered and adjudicated on. The newspaper report (a report by Mr. Ray Managh in the Cork Examiner on 9th October, 1998) concerned the estate of Mrs. Esther McCann and the ownership of a house in Dublin which had been jointly owned by Mrs. McCann and her husband, Frank McCann. At the time of the application to the Circuit Court, Mr. McCann was serving a life sentence for the murder of Mrs. McCann and a foster child. It is recorded in the report that counsel for Mr. McCann accepted that his client could not benefit from his crime and that the normal rules relating to survivorship could not be applied. Her Honour Judge Dunne decided that, although there was no specific decided case on the point, the effect of the murder was to sever the joint tenancy. Mr. McCann could not inherit or succeed to the interest of Mrs. McCann in the property, which, apparently, would devolve on her mother.
5.2 Counsel for the plaintiffs also pointed out that there is an obiter dictum in the judgment of the Supreme Court delivered by Finnegan J., with whom the other two Judges of the Supreme Court agreed, in Mahon v. Lawlor [2010] IESC 58 to the effect that a joint tenancy is severed “by homicide”, referring to Megarry & Wade on The Law of Real Property (4th Ed.) and Challis on Law of Real Property (3rd Ed.).
5.3 The Court has been referred to authorities from other common law jurisdictions which are germane to the issue the Court has to decide, namely, from the United Kingdom, Canada and New Zealand.
6. United Kingdom authorities
6.1 There is a useful summary of the current state of the law in the United Kingdom in Megarry & Wade on The Law of Real Property (7th Ed., 2008) where it is stated at para. 13 – 049:
“One consequence of the rule that no one may benefit in law from his own crime, is that, in general, if one joint tenant criminally kills another, the killer cannot take any beneficial interest by survivorship. This rule of public policy, commonly known as the ‘forfeiture rule’, applies to cases of deliberate and intentional homicide, where the killing is murder, manslaughter or aiding and abetting a suicide. It has not been conclusively settled in England whether the application of the rule causes the automatic severance of the joint tenancy or whether a constructive trust is imposed to prevent the killer from obtaining any benefit from his crime. Where there are just two joint tenants, the answer will be the same on either view.”
In a footnote, the editors point out that in Australia the courts impose a constructive trust and that there are persuasive reasons for preferring that approach, citing, inter alia, Rasmanis v. Jurewitsch (1979) 70 S.R. (N.S.W.) 407.
6.2 As the editors of Megarry point out in the same paragraph, the Court in the United Kingdom now has a statutory power, under the Forfeiture Act 1982 (the Act of 1982), to modify the application of the forfeiture rule in cases where a person has unlawfully killed another, save where he or she has been convicted of murder. The Court may do so only if it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as may appear material to it, the justice of the case so requires. In the exercise of the statutory power, the Court may hold that the right of survivorship applies, notwithstanding that one joint tenant killed another. As I have recorded, counsel for the defendant acknowledged that he could not urge the Court that the right of survivorship applies in this case. However, in considering recent English authorities referred to below, it is necessary to keep those statutory provisions in mind.
6.3 The decision of the Chancery Division of the English High Court in Re K. Deceased [1985] 1 Ch. 85 post-dated the Act of 1982. The only passage from the judgment of Vinelott J. which I consider to be of assistance for present purposes is the following passage (at p. 100):
“As I have mentioned the matrimonial home (which is registered land) was vested in the deceased and the widow as joint tenants at law and in equity. Mr. Barlow on behalf of the widow accepts that the forfeiture rule unless modified by the Act of 1982 applies in effect to sever the joint tenancy in the proceeds of sale and in the rents and profits until sale. I think that concession is rightly made. There is curiously no reported case on the point in England but it has been held in other jurisdictions where the law was similar to English law before 1925 that where one of two joint tenants murders the other while the entire interest vests in the survivor the law imports a constructive trust of an undivided one-half share for the benefit of the next of kin of the deceased other than the offender: see Schobelt v. Barber . . . , and In re Pechar, decd. . . . . Under English law since 1925 the result is more simply reached by treating the beneficial interest as vesting in the deceased and the survivor as tenants in common.”
To put that passage into its factual context, the widow, with the intention of frightening the deceased, her husband, and deterring him from following her out of the room, picked up a loaded shotgun and released the safety catch. The gun went off killing the deceased. The widow was charged with murder, but the Court accepted a plea of guilty to manslaughter and she was placed on probation. In opting for the automatic severance approach, Vinelott J. seems to have attached considerable weight to the changes in relation to joint tenancies introduced in England in the Law of Property Act 1925 (in relation to which, cf. Wylie on Irish Land Law, 4th Ed. fn. 24 at p. 462).
6.4 The passage from the judgment of Vinelott J. quoted above was approved by Mummery L.J. in the Court of Appeal of England and Wales in Dunbar v. Plant [1998] Ch 412. In his judgment, Mummery L.J., in the context of considering the ownership of a house and other assets jointly owned by the deceased and the defendant, Ms. Plant, in circumstances where it had been found that Ms. Plant had criminally aided and abetted the suicide of the deceased, who was her fiancée, stated (at p. 418):
“The house has been sold for £35,000. It is not in dispute that the forfeiture rule, unless modified under the Act of 1982, applied to effect a severance of the beneficial joint tenancy in the house and that Miss Plant was therefore entitled to an equal half share in the proceeds as tenant in common. (This concession was correctly made: see In re K. Deceased. . . . ).
7. Canadian authority
7.1 The headnote in the report of the judgment of the Ontario High Court in Schobelt v. Barber 60 D.L.R. (2d) 519, which dates from 1966 and was referred to in the passage of the judgment of Vinelott J. quoted at para. 6.3 above, summarises the effect of the judgment as follows:
“Where one of two joint tenants murders the other the usual rule of survivorship applies and the full interest in the property accrues to the survivor. However the court will then impose a constructive trust so that the survivor holds the property as to an undivided interest share for the benefit of the deceased joint tenant’s next of kin.”
The essential facts under consideration by the Ontario High Court were that Mr. Barber and Mrs. Barber had owned real estate in Ontario, the subject of the proceedings, for six or seven years as joint tenants before the death of Mrs. Barber in 1965. Mr. Barber was charged with the murder of Mrs. Barber and in May 1966 he was convicted of non-capital murder. Mrs. Barber’s sister brought the proceedings, on behalf of herself and all of the next of kin of Mrs. Barber, claiming that it was contrary to public policy that Mr. Barber should be able to deal with the real estate as his own because of the death of his wife at his own hands. In my view, the reasoning of Moorhouse J. in his judgment is particularly instructive and persuasive. He said at the outset that he was informed by counsel that they had been unable to find a Canadian precedent.
7.2 In addressing the question he posed as to what was the destination of the rights in the real estate, Moorhouse J. distinguished between changes of ownership of property held on joint tenancy and of other forms of property as a consequence of a death, stating (at p. 522):
“The problem of those who hold as joint tenants and not as tenants in common differs from that of a beneficiary under an insurance contract, the devisee under a will or an heir upon intestacy in that the survivor’s right previously in existence is enlarged by the death while in the other situations mentioned the right is brought into being by the death. In the joint estate the survivor does not take the moiety of the other or as his successor but takes by right under the instrument creating the joint tenancy.”
In answering the next questions he posed, whether the Court should interfere in the destination of the property and, if it should, how that could best be done, Moorhouse J. analysed several courses open to the Court by reference to academic commentary on an earlier Canadian authority (Re Pupkowski 6 D.L.R. (2d) 427, a decision of the Supreme Court of British Columbia) by Prof. R. St. J. MacDonald in 35 Can. Bar Rev. (1957). The options considered by Moorhouse J., and his views on them, may be summarised as follows:
(1) The normal rule might apply whereby the whole estate accrues to the survivor. Moorhouse J. rejected that option on the basis that it not only violates the rule that a man cannot benefit directly from his own wrongful act but it is contrary to public policy that he should be permitted to do so. He pointed out that the law of joint tenancies had developed in a manner that one joint tenant might either voluntarily (or involuntarily) determine the joint tenancy and to that extent the jus accrescendi might be thus defeated, though the remaining joint tenant would still have his undivided interest as a tenant in common. The logic underlying the rejection of that option, in my view, is irrefutable. In any event, as I have made clear, contrary to the position adopted by the defendant in his replying affidavits, it was acknowledged at the hearing by his counsel that he cannot take the entire interest in all of the joint assets by right of survivorship.
(2) The jus accrescendi could be held to be inoperative because of the crime, in which event the survivor would take nothing. As regards that option, Moorhouse J. stated:
“To give effect to this view would in my opinion be imposing a further penalty on the survivor who has been sentenced for the crime of which he has already been convicted. It would be a return to the principle of forfeiture which has been abolished by the Criminal Code . . . .”
(3) The full interest might vest in the survivor and then it might be held that the victim can be deemed to have died after the wrongdoer. As I understand how this option would operate, it would mean that the wrongdoer would take a life interest in the whole property and on his death the entire property would pass to the estate of the victim. As regards that option, Moorhouse J. stated:
“In my respectful opinion this solution could only be accomplished by much legislation. That is something which in my opinion is beyond the function of the Court.”
(4) The Court might apply the normal rule, namely, that the full interest accrues to the survivor, but with the Court impressing it with a trust and declaring that the survivor holds an interest, meaning, as I understand it, an undivided share, as constructive trustee for the victim’s heirs or devisees. Moorhouse J. stated that, in view of the claim made in the case before him, i.e., to an undivided half, that option more closely met the demands of justice on the facts than any other avenue open to him.”
7.3 On the facts before him, Moorhouse J. declared that the defendant in his personal capacity was a constructive trustee of the whole property for himself as to an undivided one-half and as to the remaining undivided one-half for the next of kin of the deceased, Mrs. Barber. Earlier in his judgment, having quoted a passage from a text published in the USA, Scott on Trusts (1st ed., vol. 3, p. 2383), to the effect that, in the absence of a statute otherwise providing, it would seem that the legal title should pass to the murderer and that he is chargeable as a constructive trustee and that, by imposing a constructive trust upon the murderer, the Court is merely compelling the murderer to surrender the profits of his crime and thus preventing his unjust enrichment, Moorhouse J. explained his preference for that solution as follows (at p. 525):
“This I know is but a feeble attempt to undo the advantage gained by the wrongdoer. It is true it takes away a right previously possessed, i.e., the jus accrescendi, and to that extent it is a forfeiture, but he could have terminated that incident lawfully – by his own act he could have converted the estate into a tenancy in common. It seems to me the method I adopt interferes less with the rights acquired by the joint tenants under the original document than any other method apparent to me and yet conforms to the established rule of public policy. It does not I think add murder to the approved methods by which one joint tenant may convert a joint tenancy into a different estate whereby he acquires an estate he could not himself have acquired but for the crime.”
The declaration made in that case was that Mr. Barber, in his personal capacity, held the property upon trust, one-half for himself and the other one-half for the next of kin of Mrs. Barber.
8. New Zealand authority
8.1 The decision in Schobelt v. Barber was cited in the decision of the Supreme Court of Auckland, New Zealand in Re Pechar, decd. [1969] NZLR 574, which was also cited in the passage from the judgment of Vinelott J. quoted at para. 6.3 above. It is unnecessary for present purposes to consider the complicated facts of, and issues in, that case save to say that Hardie Boys J. had to consider whether Ante Grbic, who had been found not fit to plead on charges in connection with the death of his wife whom he had stabbed to death and who had been detained in a mental institution, was entitled to succeed to property held by him and his wife as joint tenants.
8.2 Having referred to various authorities, including Cleaver v. Mutual Reserve Fund Life Association (referred to at para. 3.1 above), Hardie Boys J. stated (at p. 585):
“These citations from authority . . . satisfy me that precisely the same principles should be applied to a joint tenancy and that, at least, Ante Grbic cannot claim the whole estate as having survived his wife whom he murdered.
But what happens to his own co-extensive and co-existing right? I see force in the argument that, forfeiture and escheat having been abolished, for as long as he himself lived his crime would not deprive him of that right; it was a right in law which he enjoyed prior to the crime and, whilst he cannot enlarge that interest and promote his survivorship to beneficial ownership of the whole estate by murdering his joint tenant, there is nothing in the authorities which I have read which deprives him of the whole of what he already has.
If, however, one stopped there, it would be ignoring the fact that his crime has got rid of the joint tenant who throughout his natural lifetime had a co-existing and co-extensive right the same as his own. He has indeed enlarged his rights during his lifetime to the extent of having removed the joint tenant whose interest was equal with his own.”
In addressing the question he posed at the beginning of the second paragraph in the above quotation, Hardie Boys J. resorted to the second edition of Scott on Trusts (2nd Ed., 3203, para. 493.2) and the author’s analysis of the various solutions adopted by the American courts in husband and wife cases. He opted for the fifth of Scott’s alternatives, which he summarised (at p. 586) as that “the murderer is chargeable as a constructive trustee of his victim’s estate of one half of the property”.
8.3 The manner in which Hardie Boys J. gave effect to that option was more complex than one would have anticipated. He answered the question whether Ante Grbic was entitled to succeed as surviving joint tenant to any property held by himself and his late wife as joint tenants as follows (at p. 588):
“The legal title to any property held by Ante Grbic and Marina Kathleen Grbic as joint tenants passes by survivorship to the said Ante Grbic but that such property is held by the said Ante Grbic as to one-half thereof as a constructive trustee for the estate of Marina Kathleen Grbic so that throughout the natural life of Ante Grbic one-half of the income arising from such property is held in trust for the estate of Marina Kathleen Grbic and upon the death of said Ante Grbic one-half of such property is held in trust for the estate of Marina Kathleen Grbic.”
On the basis of his subsequent comments, it would seem that, in answering the question thus, Hardie Boys J. intended that the trust under which the survivor held his own share should be framed in such a way that he would not be in a position to legally dispose of his interest as tenant in common. I can understand the objection of counsel for the plaintiffs to the imposition of that type of constructive trust in this case. I cannot see how it would be fair to the beneficiaries of the estate of the victim to declare the constructive trust in a manner which would effectively postpone their obtaining control of, or the realisation of, the estate’s share of the property formerly jointly held, whether by partition, sale in lieu of partition and a division of the proceeds, or otherwise, until after the death of the criminal.
8.4 Some observations made by Hardie Boys J. earlier in his judgment in relation to the technical issue of the passing of title are of relevance. He referred to an earlier decision of an Australian Court, Re Thorp and the Real Property Act 1900 [1962] NSWR 889, in which Scott’s propositions and the necessity of finding some means of giving effect to the rule laid down in the Cleaver case had been discussed. In that case, Jacobs J., having pointed out that forfeiture and escheat had been abolished in Australia, stated that the legal title had to pass to the surviving joint tenant and what the Court was concerned with was whether a trust should be engrafted on the legal title. Hardie Boys J. (at p. 587) quoted the following observations of Jacobs J.:
“This is not altogether a satisfactory or logical conclusion because it relegates the enforcement of the principle of public policy to the realm of equity and does not introduce it into the common law from which it sprang. However, there is no way, it seems to me, consonant with the preservation of the principles of real property, in which effect could be given to the modern doctrine. I therefore think that it is best to leave the legal devolution of title untouched and to hold that the principle of public policy should be enforced by the medium of the trust.”
As noted by Hardie Boys J., Jacobs J. was only concerned with the devolution of the legal title and he did not address the beneficial provisions under the constructive trust.
8.5 Finally, I think it is worth recording that Hardie Boys J. considered that his judgment had the same effect as the judgment of Moorhouse J. in Schobelt v. Barber, and the judgment of Street J. in Rasmanis v. Jurewitsch referred to at para. 6.1 above. He quoted the effect of the decision of Street J. from the headnote of the report as follows (at p. 588):
“Where A. and B. are registered proprietors of an estate in fee simple as joint tenants of land under the Real Property Act 1900, as amended, and A. murders B., the legal estate in the land becomes vested in A., but in equity he holds it in trust for himself and the legal personal representative of B. as equitable tenants in common in equal shares.”
On the facts, Street J. also had to address the situation, which does not arise in this case, where there had been a third joint tenant, holding with A. and B.
9. Conclusions on the current ownership of the joint assets
9.1 I have two preliminary observations to make in relation to the approach I propose adopting to determining the issues outlined at para. 4.1 above. First, I consider that, in determining how, and to whom, the joint assets passed on the death of the Deceased, the relevant law is that which applied at the date of the death of the Deceased. Secondly, I consider that the proper approach is to apply the law to the facts as they were immediately before the death of the Deceased, that is to say, that the joint assets were jointly owned by two joint tenants. I make that point because it is clear from what follows the passage from Megarry & Wade, which I have quoted at para. at 6.1 above, and the decision in Rasmanis v. Jurewitsch referred to earlier, that, where property has been jointly held by three or more joint tenants, answering the question whether, in the event of a homicide of one joint tenant by another, there is an automatic severance or a constructive trust is imposed gives rise to different results depending on the answer. In a case involving three or more joint tenants it would be necessary to assess the implications of those differences. However, in the context of the facts of this case, such implications are merely academic.
9.2 The Deceased died before the coming into operation of the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), which came into operation on 1st December, 2009. Accordingly, the devolution of the legal title to the properties at Rowan Hill and 32, Tramway Court on the death of the Deceased falls to be determined in accordance with the common law principles applicable at the date of her death. In my view, applying those principles, on the death of the Deceased the legal estate in those properties accrued to the defendant solely by right of survivorship. In particular, having regard to the relevant common law principles, in my view, it is not possible to conclude that the legal estate in the joint tenancy was automatically severed on the death of the Deceased. While those conclusions resolve the question in relation to the devolution of the legal title, the crucial questions which have to be determined are whether, on the death of the Deceased, the legal title to those properties became impressed with a constructive trust and, if it did, what are the terms of the trust.
9.3 As I have stated at para. 3.3 above, the defendant conceded at the hearing that on the death of the Deceased he did not become solely beneficially entitled to the joint assets. Rather he acknowledged that the joint assets are beneficially owned in equal shares by the defendant and the estate of the Deceased. In making that concession, the defendant, through his counsel, properly, if belatedly, acknowledged that the law, as a matter of public policy, will not permit him to obtain a benefit or enforce a right resulting from the crime he committed against the Deceased. That concession also narrowed the issues which the Court has to determine.
9.4 The issue which remains for the determination of the Court is whether, as was contended by counsel for the plaintiffs, public policy considerations necessitate that the estate of the Deceased should become solely beneficially entitled to the joint assets to the exclusion of the defendant. In addressing that issue, it seems to me that the proper approach is to identify the nature of the interest which each of the joint tenants enjoyed in the properties at Rowan Hill and 32, Tramway Court immediately prior to the death of the Deceased. They had concurrent rights to possession in those properties and each had the hope of his or her interest being enlarged into sole ownership by the operation of the jus accrescendi, if he or she survived the other. Under the law in force at the time, each had power to prevent the jus accrescendi ultimately applying by unilaterally severing the joint tenancy at any time prior to the death of the first of the joint tenants to die. It is true that, if the Court were to hold that the defendant now has a beneficial interest to the extent of one-half share in those properties, his entitlement to a specific share therein will have been accelerated by reason of the death of his co-owner. However, the reality of the situation is that, prior to the coming into force of ss. 30 (which voids unilateral severance of a joint tenancy) and 31 of the Act of 2009, during their joint lives either the defendant or the Deceased could have achieved the same result by taking steps to unilaterally sever the joint tenancy. It is also true that, if the tragic events of 15th December, 2008 had not occurred, the Deceased might have survived the defendant and become solely legally and beneficially entitled to those properties. However, as Hardie Boys J. stated in Re Pechar (at p. 587), referring to the third edition of Megarry & Wade, “any joint tenancy involves a chance and the chance is an ‘all or nothing chance’”. It follows that at the material time, that is to say, immediately before the death of the Deceased, there were a number of possibilities as to the ultimate destination of the joint assets, which would have turned on a number of imponderables, for example, whether one or other of the joint tenants would sever the joint tenancy and which of the joint tenants would die first. In my view, it is not possible to form a view, even as a matter of probability, as to where the ownership of those properties would have ultimately vested, if those tragic events had not occurred.
9.5 Accordingly, if the Court were to hold that on the date of the death of the Deceased the joint assets accrued to the defendant solely and were held by him on a constructive trust for himself and the estate of the Deceased in equal shares, that outcome, viewed objectively at that time, could not be regarded as conferring a benefit on the defendant as a result of the crime he committed. On the other hand, if the Court were to hold that the defendant on that day held, and continues to hold, the entire interest in the joint assets on trust for the estate of the Deceased solely, the Court would effectively be interfering with the defendant’s existing rights in the joint assets. In the absence of legislation empowering the Court to so interfere with the defendant’s existing rights at the date of the Deceased’s death, in my view, the Court has no power or jurisdiction to do so. In particular, I do not consider that it would be proper to determine, by analogy to s. 120(5), that the ownership of the joint assets following the death of the Deceased should be determined on the basis that the defendant should be deemed to have pre-deceased the Deceased. Section 120 deals with the distribution of property owned by the deceased person, not with the distribution of property in which an unworthy potential successor has rights. Whether legislation, which would have the effect which counsel for the plaintiffs urged the Court to bring about in relation to the joint assets would be justified having regard to social justice and the exigencies of the common good so as to be able to withstand attack on the grounds of repugnancy to the Constitution, is not a matter on which it would be appropriate for the Court to express a view. However, I am satisfied that, in the absence of legislation conferring express power on the Court to interfere with the defendant’s existing rights to the joint assets, the Court has no such power or jurisdiction.
9.6 Accordingly, the answer to the questions raised at para. 4.1 above are as follows:
(a) the entirety of the joint assets do not form part of the estate of the Deceased to the exclusion of the defendant; and
(b) while severance did not occur on the death of the Deceased, the joint assets have accrued to the defendant solely but as to one half share thereof they are held by him on a constructive trust for the estate of the Deceased.
To put it in another way, I find that on the death of the Deceased the joint assets became vested in the defendant upon a constructive trust as to one-half share thereof for the defendant in his own right and as to the other one-half share thereof upon the trusts applicable thereto as part of the estate of the Deceased.
10. Consequential considerations
10.1 Counsel for the plaintiffs emphasised that the Beneficiary, understandably, wants finality to be brought to the issues which have arisen in relation to the joint assets. The finding I have made at para. 9.6 above has determined the ownership of the joint assets following the death of the Deceased. As was recognised by counsel for the plaintiffs, it may be necessary for the Court to consider further, having heard further submissions, how the Beneficiary’s objective of bringing finality to this matter can be achieved. However, Court intervention will only be necessary if agreement cannot be reached between the parties to achieve that end. With a view to assisting the parties, but without prejudging any issue which remains to be determined, I would make the following observations.
10.2 There can be no doubt that the optimum solution would be for agreement to be reached between the plaintiffs and the defendant as to the mode of division of the joint assets between them to satisfy their respective shares therein and for the defendant, as trustee, to transfer (by conveyance or otherwise) the assets to be appropriated to the estate of the Deceased in satisfaction of the share to which the estate is entitled, or, alternatively, to participate in the realisation of the assets and a division of the proceeds of sale thereof, if that is the agreed solution. That would enable the Personal Representatives to complete the administration of the estate of the Deceased. Adopting that approach would avoid further litigation of these proceedings and the legal and other costs which litigation would entail. However, if agreement cannot be reached between the parties, then the plaintiffs will have to give consideration to seeking relief in these proceedings under s. 31 of the Act of 2009. The Personal Representatives and the defendant being co-owners in equity of the joint assets, as regards Rowan Hill and 32, Tramway Court, it is open to the Court, on the application of the Personal Representatives, to make orders granting various reliefs under s. 31, including an order for partition of land amongst co-owners, an order for the sale of land and distribution of the proceeds of sale, or such other order relating to land as appears to the Court to be just and equitable in the circumstances of the case. Further, as regards the legal estate, in the event of lack of co-operation by the defendant qua trustee, it would be open to the Court to make a vesting declaration pursuant to s. 26 of the Trustee Act 1893.
10.3 Prima facie, the defendant must account to the plaintiffs for his dealing with the joint assets since the death of the Deceased, for example, for the rent which he received out of No. 32, Tramway Court. Again, the optimum solution would be for the plaintiffs and the defendant to reach agreement in relation to such accounting and, as appropriate, to factor in the result in the division of the joint assets. However, if agreement cannot be achieved, this aspect of the proceedings will have to be dealt with either by the Court or referred to the office of the Examiner of the High Court to conduct necessary inquiries and accounts. If either process is necessary, the final resolution of the issues between the parties will be delayed and further costs will accrue.
10.4 I propose adjourning the proceedings for a sufficient period to allow the parties to attempt to reach agreement in relation to the outstanding matters.
11. Legislation
11.1 The issues raised in these proceedings demonstrate that, ideally, there should be legislation in place which prescribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner. Such legislation would have to have regard to the changes in relation to co-ownership of real property affected by the Act of 2009. It would also have to address from a policy perspective the complications which arise in a situation where there are three or more co-owners.