Supreme Court
Action No. 386 of 1981
24th March, 1982.
Moe, J.

Mr. N. Dujohn, for the Plaintiff

Administration of Estates - Will - Construction of a Will - Principles to be used in construing a Will - Whether devise in Will creating a life interest or a fee simple absolute to the devisee - Meaning of the word "absolutely" in a Will - Order 59 Rule 19 of the Supreme Court Rules.

D E C I S I O N

The question for determination in this matter is the construction to be placed on a disposition in a Will. The father of the Plaintiff by his Will dated 13th March, 1979 disposed of certain lands in the following terms: -

"I DEVISE Block No. of 30 acres of land, containing 10 acres of matured sugar cane, situate about ¼ of a mile South-West of Carolina Village, in the Pembroke Hall Reserve; Lot No. 488-Re. Minister's Fiat Grant No. 170 of 1976; Lot 467A, Re. Minister's Fiat, No. 534 of 1975, both lots are situate in Corozal Town, respectively, to my son David Rancharan Jr. after my death, for the term of his life, absolutely."

It has been submitted that on a proper construction the above devise is to
be interpreted as passing a fee simple absolute to the devisee, the Plaintiff.

I reaffirm, first, the cardinal rule of construction applicable to Wills, that the intention of the Testator must be ascertained from the words he has used and that intention given effect to where no rule of law is opposed to it. Now turning to the words used, and reading, firstly, the devise without the word absolutely, up to that point the words used include words of limitation namely "for the term of his life" and would show an intention to create a life interest. The question then arises whether the use of the word "absolutely", thereafter, extends or in anyway effects a construction that the Testator intended to create a life interest.

The word "absolutely" has been defined to mean "free of any fetter in any form". See Clauson J. in Re Ray's Will Trusts (1936) Ch. 520 at 525. I adopt that meaning and think that by the use of the word absolutely the Testator intended that the devisee while retaining the devise for the term of his life was to be free of any fetter in any form in his use and enjoyment of it during that term. This meant that the devise would be at the devisee's absolute disposition. He could sell it, grant it, grant it away or pass it on by his Will.

The Testator appears, therefore, to have had in mind something more than a life interest for the Plaintiff. This view is reinforced by the fact that there is no provision in the Will as to what would happen with the said property after the life of the Plaintiff. There is no indication that he expected that the property would be dealt with other than by the Plaintiff. All of the Testator's known property appears to have been referred to in the devise under consideration and then there is a provision which purports to deal with the Testator's residuary estate.

It is unnecessary to set out the other provision which purports to deal with the residuary estate. Suffice it to say that under it he devises and bequeaths to his Trustees, i.e. the Executors of his Will, all his residue upon trust for sale, the Trustees shall hold the net proceeds of the said sale and conversion of his money upon the following trusts:-

(a) "Upon trust to pay thereout all his just debts and funeral and testamentary expenses;

(b) Upon trust to invest the residue after such payment in their names in investments authorized by law or otherwise according to their discretion and to stand possessed of such investment and all parts of his estate for the time being unsold (hereinafter called his residuary estate);"

There is no statement as to who shall be beneficiaries of the trust established. This clearly is a layman's Will and determination of the Testator's intention must be considered in that light. While an absolute interest could have been given in simpler language, on looking at the whole Will, I have no doubt that the Testator intended to give the property concerned to his son David Rancharan Jr., the Plaintiff.

In the result, I have determined that the devise to the Plaintiff set out above is an absolute one. It vests in him the parcels of land contained, therein, absolutely in fee simple. Judgment accordingly.

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