Rene Jalaudin & Ors & Toote Jaye & Carayol [1922] SLCA 8 (14 February 1922)

RENE JAI ... .AUDIX and Others - tl ppellant s. TOOTE JATE and CARAYO L - Respondents. " Lawful and natu1•al child1·en " in case of an immediate devise -Exercise of power of sale b.IJ a tntstee, Sections 11 ancl 12 of the Intestate Estates Ordinance, 1909, of the Gambia­ Fraud on a powe1· of sale-.lbsence of moral turpitude in excrcisin.9 it-Sale not to ntl'el testamentary expenses or debts due from estate. The fact6 of this case are sufficiently set out in the judgments. Appeal from a judgment of )lC'Donncll, Acting J., in the Supreme Court of the Colony of the Gambia . Wright for Appellants cites: - Clifton v. Goodburn, L.R., 6 Eq., p. 275. Loveland v. Loveland (1906), 1 Cb., p. 542. Re Russell, 19 Ch. D., p. 4:32. Scott v. Tyler, Dickens Reps., p. 712. Doe & Woodhead v. Fowli:-;, English Reps., Yol. 149, p. 204. Carlyon v . Truscott, T,.R., 20 Eq ., p. 348. Topham v. Duke of rorthmd, L.R., 5 Ch., p. 40. Halsbury, Laws of England. Yol. 13, p. 220, para . 281. ]farwell on Powers, p. 403. Thompson £or Respondents cites:- :Jiaxwell on Statute~. :~rd Edition. pp. 172 & 173. Lewin on Trust:;. 9th Edition. pp. 468 and 469. P UR CEJ;L, C.J . 141.\Februa:ry. 1922. This is an appeal from the judgment o£ Mr. Acting Justice McDonnell sitting in the Supreme Court o£ the Gambia date d 15th J uly, 1918. The facts of the case are set out very clearly in the judgment delivered in the Court below and it will be only necessary to briefly refer to them . August Benedict Hippolite Audin, who died on 2nd Novem­ ber, 1906, devised by a will executed on 18th May, 1892, inter Avl>IN S'D OTHEM v. JAYE & JARAYOL, lROELL, C.J. 44 alia, n certnin lot of town land " to my lawful and natttral child1·en to be slta1·ed between them share and sha1'e alike." Testator had never married but bud a number of children by two women with whom he lived., the six survivors of whom were Plaintiffs in the Court below and Appellants in this Court. The Respondent J aye, the sut'\'iving executrix of the ·will, sold this freehold lot of land, to which I have referred, to the othet Respondent J can rarayol. The main issue before the Cour t was whether the Respondent improper!~· exercised this power of sale, the object of this litigation being to get such sale set aside and that the Court shall order a re-conveyance of the property to the Plaintiffs on their paying- the costs of administration incurred by the Executors. The Court below· decided that the Plaintiffs came within the designation " lawful and natural children " in the Will of the Testator, and in my opinion it was right in so deciding. The Will of the Testator in this instance spoke from the time of his death, the devise to the children was therefore immediate and there being no possibility of legitimate issue coming into existence who coulcl take under the devise, the illegitimate chil­ dren took. There is ample authority to support this contention and the following authorities ''ere cited to us in the course of Mr. Wright's arguments:- Re Loveland-Lo>eland 'IJ. Loveland (1906), 1 Ch. p. 542. Clifton 'IJ. Goodburn, L .R., 6 Eq., p. 275. Hill v . Crook, L.R. 6, li.L. , p. 265. The £ollowing passage occurs in the Testator's Will:- " It is my desir e that should I have any surviving children " that rny house and lot in 9, Hagan Street, shall not be sold "but remain to them or their children in perpetuity." Now the question arises, was the Respondent Jaye justified in selling these premises? It is quite clear that under the provi sions o£ sections 11 and 12 of the " Inte state Estates Ordi­ nance, 1909," she was n tru!'ltee and had power to deal with the Testator' s realty to satisfy his debts and testamentary expenses. The reason she has gi,en for selling this property was to recover the sum of £13. 2s. 6d. which she had advanced (so she states) to defray the administration expenses of the estate. It occurs to one that a portion of this property might have been sold or the whole or a portion mortgaged or leased. 1 am quite clear on the nuthorit:v o£ Topham 'IJ. the Duke of Portland, L.R. 5 Ch. p. 40, that in exercising the power ve-l'lted in her the R<'.<;po en lire strum. am be quite power oatl1 i were, pr and I been J her, h( is kno· this se consist, perfect I ; there h that tb haste v interest regard regarde noted t] Trusts this poi there sa by his c his cest to the in it is a b able dili stances one part facts of pondent says she which M Fur pendent be, and help feel 4 45 Re<:ponclent .Jayp """-; uonnd to exercise it properly " with an entire and sin~lc YiE>w " to the object contemplated by the in­ strument giYing- het· the power. in this case the Ordinance. 1 am bound to c;ay. looking at the facts o£ this case, that I am quite unable to fintl that t]H• Re;;pondent Jaye exercised the power of sale from an~· su<'h moti>e. She has in fact stated on oatl1 in her Hiclence in the Court below what her reasons really "·ere, namely:- (1) That IIany Audin hic;sed at her; (2) That slH' "as old and unable to look after the property; and I am quitP clear 'from tl1e authorities to which we have been referred that having allowed these reasons to influence her, her excrci:-;e of th<' pow<'l' in these circumstances '\\as what is kno'm terlmicall~· as n "fraud on the power." Fraud in this sense does not nc<·es:-larily involve moral turpitude, but is consistent with the power being exercised unselfishly and with perfect honesty. I have further come to the conclusion that very probably there has been a breach of trust here-as I cannot help feeling that the po"er of sale was exercised with improvidence and haste without inviting- competition and without regard to the interests, if not of all the beneficiaries, at all events without regard to the int<'r<'-.ts of auy but Harry .Audin which might be regarded as an undue prt'ference to him, and it should further be noted that all hut two of the .A.ppellantc:; were infants. Lewin on Trusts may be quoted in this connection and is very clear on this point on page 4G8 (Kintb Edition); the learned author there said "A 'frusteE> for sale will remember that he is bound by his office to sell the esla1c unaer every possible advantage to his cestuis que trusf, nnd with a fair and impartial attention to the interests of nll parties Poncerned ." He goes on to say that it is a breach o£ trust of n t rul:llee for sale if he fails in reason­ able diligence in i11viting-compet ition, or contracts under circum­ stances o£ haste and improvidence or advances the interests of one party al the expense of another . Now that we have all the facts o£ this case before us, I cannot help feeling that the Res­ pondent Tooie Jayc ha!'; either done ever~·thing which Mr. Lewin says she ought not to have done or has failed to do those things which Mr. Lewin says she should ha>e done. Further, in my opinion it is clear that there was no inde­ pendent valuation of this property whatever its rea l value may be, and on which I express no opinion; and lastly I cannot help feeling that, to say tl1e least of it, it was a peculiarly ill- 4 #.~0 OTRfR='l v. ,JAY& & CARAl'(\L. J'l'lCliLL. C.!. AUDIN AND OT.IIEBS v. JAYE& 0ARAYOL. PtrROELL, C.J. 46 advised and umrise act that the sam<' Solir.itor should act for both the Respondents in this transaction. If C'ver there was a ca<:e in wl1ich two -;eparaie Rolicitor~ Rhoul<l l1aYe b<'en employed, this case was that case. For these reasons, I think thai the judgment of the Court below was erroneous and that this !:ale should he set aside with costs here ancl in the C.:ourt below. SA. WR EY-COOKSO~. J. I agree. There is no doubt that the g·ifi to the bene:firiariNI under the Will being imnwdiute the J>laiutil!'s, il>Oll!.!;ll illcg·itimaie, conlcl take. so that it st•cm<~ to me that the ,,-hole ca:o;e for the .AppE-llants is disposed of on a determination o£ the hYo question<:, vi7. :- (1) w·llat was tllr tnw motir(' which induced the defendant exec•tttrix as donee of the power to sell the pro ­ perty concerned? and (2) Was that mot i>e such as amounts to a fraud on such power? In reg·ard to the first of these questions, it is true that the .Dcfrndani hPrf;el£ assi~nt"d morl' thnn one reason, one o£ which is that she was an old woman and bad not tht• strength to look afte r the yard, and it is nofeworth)· that !-llle i!-l broug-ht to admit in her cro~s - examination in efrec·t i hnt ~he is not i'ure that the reason ~he had given in her examination-in-<'hief, ·vi:r.., that she sold because a CE'rtain henefic·iary 1laUtcd llnrry lHtd hissed at her, was the correct one . But I thi11k that there (·an be no aoubt when the evidence o£ another "'·itn('ss for the defen<"e, that of Buguma Ramhn is ronsi<lt>red on tltis point. that the real reason for her action was, to put it tersel~·, that she was tired of tl1e whole husinef;;;, it was too much trouhl!' to her. mm·e particu larly because the inspectors worried her. .Ac<·<>ptin~ this, therefore, ns the true rC'ac;on, was it :111 improper one. of n kind to justify the sale being set a~ide? I do not tl1ink tl1ere can be any doubt on the clNu· :mtl,oritY of Topl1nn1 1'. the Duke of Portland (L. R. !) C'h., p. -W, nn<l 11 TI.J •. C., p. 40) that the answer to thil'l qn<'siinn lllltl'li lw in ihE' nfii··mnti>e. She clearly acted ac; she clicl, altlwug·h quJ\e probahly "'·itlwut any idea that she 'vas doing \Hong i11 so ading, in s1wh a manner as must on that authority he helcl to he a fraucl on the po'~>!'r, inasmuch as she arlmitteclly (as <·orrolJoraled hy one of her rwm witnesses) did 47 not sell in order to raise out of the Testator's estate funds to meet either some testamentary expense or some dE:>bt due by that estat1'. It is manifest!~· absurd and repugnant to common sense to argue that she sold an estate worth at least £380 in order to refund herself thP £] :l_ 2s. 6d. whi<'h sh<' hncl found some considerable time prior to the sale, npart altogether from the fact that she herself (as coHoborated) deposed that she had quite another ohjert in selling . Since, the efor<'. the defendant exercised the power of sale not for the 0111l dPsip:necl hut with an object in view which was sinistE:'r. m the spnse of being bP~·ond the purpose an d interest of the power, she must be held to have comm itted a. fnwd on the power neressitnting- the .;etting aside of tl1e sale. There is no doubt that hao the authorities give11 us 1>~· ) fr. Wright been before m~ lt>arned hrother )fd)onnell, lw too wonld have come to another conclusion. McD OXNELL, Acting .T. I concur, and T do so not hf'cause I think the conclusions of fad at which l arrived in the Court of First Instance are wrong either in regard to tlw \alnation of the 1n-operty or other matters, bnt beca ·use in gi,ing jndgment in that Court I did not appreciate the point that there could be a fraud upon the power in the absence of moral turpitude on the part of the appointor. It is clear from thP e\iclE>nce that the RE><>ponclent, as pro,ed from her own lips and those of her t>On, Buguma Samba, was instigated to sell owing to her "·i!'hin~ to esrape unwelcome atten ­ tion from sanitary inspectors pressing her to clean the lot. This being so I do not think she can he said, i11 the words of Camp hell, L .C., in Duke of Portland I'. Topham, to have exercised the power "with an entire and single view to tlw real purpose and object thereof." 4A Aunn; AND O'l'll lmS t'. JAn: & 0ARAYOL . S.\WIU;Y ­ ('C)OK:-10~. J.