Re Murphie, deceased (Hind v Murphie) 1992 Civil Appeal No. 1

• Jurisdiction: Bermuda
• Judgment Date: 06 December 1991
• Date: 06 December 1991
• Docket Number: Civil Jurisdiction 1990 ND. 357
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Norma Wade. A.J.

Civil Jurisdiction 1990 ND. 357

James Richard Murphie

Plaintiff

and

Nancy Ellen Hind Norman Ahern George Norr is (the executors of the Estate of Dorothy Enith Nurphie, deceased)

Defendants

Miss Glare Hatcher for the Plaintiff

Mr. Trevor Moniz for the Defendants

Re Williams, Wiles v MadginUNK [1985] 1 All ER 964

Re Cook, Beck v GrantELR [1948] 1 Ch 216

Gyett v Williams (1862) 2 J&H 1129

Re Gare, Filmer v Carter [1951] 2 A;; ER 8631

Perrin v MorganELR [1942] AC 399

Ralph v CarrichELR (1879) 11 ChD 873

Falkiner v Commissioner of Stamp DutiesELR [1973] AC 565

Saville Brothers Ltd v BethelELR [1902] 2 Ch 523

Blundell v GladstoneENR 60 ER 288

Holdfast d Hitchcock v PardoeENR (1775) 96 ER 575

Doe d Amlot v DavisENR (1839) 150 ER 1560

Successions Act 1974 s. 12

Administration of Estates Act 1974

Interpretation of will — Whether estate includes real and personal estate — Technical meaning rule — Definition of ‘net estate’ and ‘estate’

JUDGMENT

Norma Wade. A.J.

The question for determination in this matter concerns the validity of certain provisions in the Testator's will and is framed thus in the amended Origination Summons.

‘Upon the true construction of Clauses 15,16,17 & 18 of the Last Will and Testament of the deceased, Dorothy Enith Murphie, dated the 10th June, 14% (‘the Will’) whether the real and personal estate should be divided equality between Nancy Ellen Hind and James Richard Murphie, or whether the interest of James Richard Murphie is restricted to 50% of the net personal estate of the deceased, and the real estate belongs entirely to the said Nancy Ellen Hind.’

Sections 15,16,17 and 18 of the will are as follows.

• ‘15. I GIVE AND BEQUEATH unto my son the said JAMES RICHARD MUHPHIE such sum as represents Fifty percent (5O%) of my net estate after payment of all my debts including but not limited to all my funeral and testamentary expenses, probate expenses, stamp duties and bequests as herein set out save and except the provisions of Clause 17 of this my Will.

• 16. IF my son the Said JAMES RICHARD MURPHIE shall not me survive I GIVE AND BEQUEATH such surn that represents Fifty percent (50%) of my net estate after payment of all my debts including but not limited to all funeral and testamentary expenses, probate expenses, stamp duty and bequests as herein set out save and except the provisions of Clauses 17 and 18 of this my Will unto such of his children as may survive and if more than one in equal shares as tenants-in-common.

• 17. I GIVE BEQUEATH AND DEVISE unto my daughter the said NANCY ELLEN HIND all the rest and residue of my personal estate and all my real estate of whatsoever nature and wheresoever situate.

• 18. IF my daughter the said NANCY ELLEN HIND shall not me survive I GIVE AND BEQUEATH AND DEVISE unto such of my grandchildren being the children of my daughter the said NANCY ELLEN HIND all the rest and 4s residue of my personal estate and all my real estate of whatsoever nature and wheresoever situate and if more than one in equal shares as tenants-in-common absolutely.’

The Plaintiff and the first Defendant are the son and daughter of the testatrix.

By her will, drawn with professional assistance dated 10th June, 1986, the testatrix provided as follows:

By Clause 1 she appointed the 1st named Defendant and 2 friends as executors of her will.

By Clause 2 she directed the payment of all just debts, funeral and testamentary expenses.

By Clause 3 she gave and bequeathed certain ‘specific legacies’.

By Clause 4 she gave and bequeathed furniture to her daughter.

By Clauses 6,7, & 8 she gave and bequeathed various chattels to the children of her son.

By Clauses 9 and 10 she gave and bequeathed various utensils to her daughter.

By Clause 11 she gave and bequeathed certain oil paintings to the children of her daughter.

By Clause 12 she gave and bequeathed a general gift to each of her grandchildren.

By Clause 13 she gave and bequeathed the residue of her jewelry and furniture to certain persons whose names appear on a separate list.

By Clause 14 she forgave a debt due to her from her daughter.

At the hearing, it was agreed by counsel for the parties, that the will alone is the document that has to be construed, and save for the court's residual discretion to look to extrinsic evidence, this was not a matter where extrinsic evidence was necessary.

I have perused section 32(1) of the Wills Act, 1988 which gives the court the discretion to admit extrinsic evidence, including evidence of the Testator's intention, to assist in the interpretation of a will in the following circumstances:

• ‘(a) in so far as any part of it is meaningless;

• (b) in so far as the language used in any part of it is ambiguous on the face of it;

• (c) in so far as evidence, other than evidence of the testator's intentions, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.’

I have considered this residual discretion and agree with counsel that the Will should be construed as it stands. I am assisted in this approach by the autnority of Re Williams (deceased) Wiles and another v. Madoin and Others[1985] 1 All ER at page 964 where it was held that the purpose of admitting extrinsic evidence was to ‘assist in the construction of a will by showing which of two or more possible meanings a testator had attached to a particular word or phrase, and, although the true meaning of the word or phrase might not be apparent until extrinsic evidence was admitted, the word or phrase read in its context had to be capable of bearing that meaning, since otherwise the court would in effect be rewriting part of the will.’ It is my respectful view that in the context of this case, the true meaning of the words used in the disposition in question is apparent on the face of the will, therefore there is no need for extrinsic evidence.

Miss Hatcher, counsel for the Plaintiff, advanced a number of submissions as to how the court should approach the determination of this issue. She submitted the following:

1) that the opening words of Clause 15, (I GIVE AND BEQUEATH) do not contain the word devise, however, the word “devise” is unnecessary to transfer...