lord hodge:
1.
This appeal concerns events which occurred over half a century ago and
legal rules which are now for most purposes only of historical interest in St
Lucia after the adoption of the new Civil Code in 1957. In particular, the
appeal concerns provisions of the superseded Civil Code of 1879 which relate to
dower and the effect of a contract of marriage on the ability of a husband to
dispose of property by testamentary disposition.
2.
The facts can be stated briefly. Richardson Cox married Flavienne Cox
and the couple had ten children together before she died. The Board was not
informed as to the date of the marriage or the date of death of Flavienne Cox.
Richardson Cox later decided to remarry and on 13 November 1948 entered into an
agreement in contemplation of marriage with Lorna Mary St Marie. In that
marriage contract the parties agreed (i) that they would hold as community
property all property whether moveable or immoveable which they would acquire
during their marriage (clause 1), and (ii) that they would hold as separate
property all property which they had acquired before their marriage and all
property which they might acquire by succession during their marriage (clause
2). Clause 4 provided:
“There shall be no dower whether
customary or prefix and the said future wife hereby renounces for her children
all or any dower.”
Richardson and Lorna Cox married on 27 November 1948 and
subsequently had nine children together.
3.
On 8 February 1954 Mr Cox purchased the Champagne Estate, which is
described in the Deed of Sale of that date as a landholding of approximately
100 acres in the Quarter of Anse la Raye. In a later vesting deed dated 11 May
2011, which the Board mentions below, the Champagne Estate is described as
comprising 60.51 hectares or 149.52 acres. The purchase price of the estate was
$9,600, but as the estate was encumbered with debts of $8,842.20, which Mr Cox
took on as purchaser, he was required to pay only $757.80 in cash. There was
uncontested evidence in the trial that the purchase was funded by a loan from
the Agricultural Bank. There was also uncontested evidence that Richardson Cox
and, after his death, Lorna Cox worked the estate to repay this loan and the
loans by which it had already been encumbered. Richardson Cox purchased the
land in his own name with the consent of his wife, Lorna, who was a signatory
of the Deed of Sale. In Wilkinson J’s judgment at first instance, which the
Board discusses below, the learned judge records (para 12) that a survey in
2012 valued the Champagne estate as having a market value of EC $1,285,880.
4.
On 6 November 1959 Mr Cox executed his Will, in which he left the
Champagne Estate in usufruct to Lorna and devised the nuda proprietas or bare
ownership of the Champagne Estate to the children of his second marriage in
equal shares. He left the rest of his estate to the children of his first
marriage as residuary legatees. Mr Cox died on 6 October 1963. Thereafter time
passed before on 29 June 1968 Lorna was granted probate of Mr Cox’s estate. She
appears not to have acted to implement the Will for many years. It also appears
that the children of Mr Cox’s first marriage were not aware of this grant of
probate. As a result, Phillip, one of the children of Mr Cox’s first marriage,
applied for and on 21 October 1988 was granted letters of administration on Mr
Cox’s estate.
5.
The appellant was appointed personal representative of Mr Cox in
substitution for Phillip in 2006. On the understanding that Richardson Cox had
died intestate, she transferred parcels of land, other than the Champagne
Estate, to herself and her siblings as proprietors in common. In late 2009 she
became aware of the probate granted to Lorna and, after the appellant’s
attorney notified a claim, Lorna executed a vesting deed on 11 May 2011 to
implement Mr Cox’s Will in part by vesting in herself the usufruct or life
interest in the Champagne Estate and the nuda proprietas or bare ownership of that
estate in the children of the second marriage.
The dispute
6.
The dispute which arises in this case is between the children of Mr
Cox’s first marriage and the children of his second marriage. It is concerned
with the extent of the property which may have been subject to legal dower in
the first marriage (the Board being invited by the appellant to assume that
legal dower had not been excluded by contract in relation to the first
marriage) and whether clause 4 of the marriage covenant relating to the second
marriage (para 2 above) prevented Mr Cox from disposing of immoveable property
acquired during the course of the second marriage to Lorna and the children of
that marriage by testamentary disposition.
7.
By fixed date claim which was issued on 3 June 2011 the appellant and
her now deceased brother, Theobalds, sought revocation of the probate in favour
of Lorna and a declaration that Richardson Cox and Lorna had breached clause 4
of their marriage covenant which had excluded dower. In a judgment after trial
dated 4 February 2013 Wilkinson J accepted the claimants’ submission. She
referred to certain provisions of the Civil Code of 1879, including articles
1180, 1185 and 1344 which the Board discusses below. She observed that the
power to stipulate in a contract of marriage that there should be no dower
bound both the children and the mother (article 1344) and stated, critically,
(in para 19):
“The net effect of the provision
providing for no dower was that the defendant [who was then Lorna] and her
children fathered by Richardson Cox were not to benefit from his estate whether
under intestacy or by will.”
It followed from that proposition that Mr Cox could not
transfer the Champagne Estate to Lorna or the children of the second marriage
by testamentary disposition and that the clauses of his Will which purported to
do so were invalid. Wilkinson J therefore so declared and ordered Lorna to
vacate the Champagne Estate and to distribute that estate to the children of
the first marriage.
8.
Lorna appealed to the Court of Appeal of the Eastern Caribbean Supreme
Court, which by order dated 19 December 2013 allowed her appeal and set aside
Wilkinson J’s orders. The Court of Appeal (Pereira CJ, Michel JA and Mitchell
JA (acting)) in an ex tempore judgment on the same date held that the exclusion
of dower by the marriage covenant before the second marriage left Richardson
Cox with complete freedom to dispose of his property by testamentary
disposition.
9.
Since the judgment of the Court of Appeal was handed down, Theobalds
died in 2014 and Lorna died in 2015. The Court of Appeal granted unconditional
leave to appeal as of right to the Board on 26 January 2015. In 2017 the appellant
was appointed to represent Theobalds’ estate and the current respondent was
appointed to replace Lorna.
10.
Before the Board, Mr V Dexter Theodore QC in an elegant and succinct
submission again pursued the argument which had been advanced in the courts
below that clause 4 of the marriage covenant prevented Richardson Cox from
transferring his estate to Lorna or the children of the second marriage by
testamentary disposition. He submitted that the relevant provisions of the
Civil Code should be given a purposive interpretation in the interests of legal
certainty so as to uphold the terms of the marriage covenant by preventing a
person achieving by testamentary disposition a practical result which the
marriage covenant had excluded by the renunciation of dower, which in this case
was the conferring of the usufruct of the Champagne Estate on Lorna and the
ownership of that estate on their children. He also sought to advance for the
first time before the Board a new argument, by reference to articles 1340 and
1351 of the Civil Code of 1879, to the effect that the Champagne Estate had
passed to the children of the first marriage by operation of legal dower on the
death of Richardson Cox and was therefore unavailable for testamentary
disposition.
11.
It is not the practice of the Board, save in very exceptional
circumstances, to allow a new point of law to be argued without the benefit of
judgments upon it in the courts below, even where all the facts relevant to the
new point have been established in evidence or are undisputed: Pillai v Comptroller
of Income Tax [1970] AC 1124, 1130; Kemper Reinsurance Co v Minister of
Finance [2000] 1 AC 1, 9; Deosaran v Barrow [2006] UKPC 33, para 9.
This is not a case where the relevant facts have been established to support
the new argument. But in responding to the first submission the Board discusses
the nature of legal dower and that discussion provides a complete legal answer
to the new argument.
Discussion
12.
The Board is satisfied that the Court of Appeal was correct in its
determination of the appeal. The exclusion of legal dower in the marriage
covenant which Richardson and Lorna Cox signed before the second marriage did
not restrict the ability of Mr Cox by testamentary disposition to transfer
property which he was otherwise free to bequeath. Looking at the matter
practically, the effect of the appellant’s submission if correct would have
been that Mr Cox could have transferred the Champagne Estate in his Will to
anyone other than his second wife and the children of the second marriage. The
Board is quite satisfied that the Civil Code of 1879 did not give rise to such
an absurd result.
13.
The Code adopted an approach to matrimonial property which derived from
the customary laws of France. It created as a norm the joint ownership of
property by spouses but excluded from that norm immoveable property which the
spouses owned before the marriage or inherited during the marriage. Such
property in the hands of the husband was the subject of a charge known as dower
in favour of his wife and children, unless the parties contracted to exclude
dower. Thus, in the coutume of Paris, dower was explained in these terms:
“Douaire coutumier est de la
moitié des heritages que le mari tient et possede au jour des épousailles et
benediction nuptiale; et de la moitié des heritages qui depuis la consommation
dudit mariage, et pendant icelui, échéent et aviennent en ligne directe audit
mari.”
(cited in William Burge et al, The Comparative Law of
Marriage and Divorce (1910), p 535)
While the assets which were made the subject of dower under
French customary law varied between regions and cities, the norm was that dower
was a charge on the immoveable property which the husband owned at the time of
the marriage and on such immoveable property as he might acquire by succession
from his direct ascendants during the marriage: R J Pothier, Traité du
Douaire (1776), pp 17-19.
14.
The Civil Code of 1879 adopted this approach in St Lucia and achieved a
balance or symmetry in its regime for matrimonial property. Thus, in article
1195 it provided:
“The immoveables which the
consorts possess on the day when the marriage is solemnised, or which fall to
them during the continuance of the marriage by succession or an equivalent
title, do not enter into the community.”
If the parties to a marriage had not contracted to the
contrary, they were presumed under article 1180 of the Code to have subjected
themselves irrevocably to legal community of property and legal dower. But
there was excluded from the community of property the assets in article 1195
(above) and it is such assets in the husband’s ownership which are subjected to
the charge of legal dower. This is clear from the following provisions of the
Code.
15.
The Code in article 1339 distinguished between legal dower and
conventional dower. The latter, with which the Board is not concerned in this
appeal, was dower upon which the parties agreed in their contract of marriage
and which affected only the property of the husband acquired before marriage
(article 1341). The relevant provisions of the Code relating to legal dower,
with which this appeal is concerned, were as follows:
“1340. Legal dower is a charge
which the law, independently of any agreement, and from the mere act of
marriage, attaches to the property of the husband, in favour of the wife as
usufructuary, and of the children as owners. …
1344. If there be no contract of marriage,
or if that which has been made contains no explanation on the subject, legal
dower is held to be intended.
But it is lawful to stipulate that
there shall be no dower, and such a stipulation binds children as well as
mother. …
1347. Legal dower consists of the
usufruct by the wife, and the ownership by the children, of one half of the
immoveables which belong to the husband at the time of the marriage, and of one
half of those which accrue to him during marriage from his father or mother or
other ascendants. …
1351. Dower, whether legal or
conventional, is a right of survivorship which comes into operation by the
death of the husband. …”
16.
It is clear from these provisions that legal dower was confined to the
assets listed in article 1347. The appellant’s assertion to the contrary, which
underpins both her original argument and also the new argument which she has
sought to raise before the Board, focusses exclusively on article 1340, which
defined the nature of legal dower and overlooks article 1347 which alone
defined the assets which are subject to the charge.
17.
The first submission, that the marriage contract relating to the second
marriage prevented Richardson Cox from bequeathing his property by testamentary
disposition, is misconceived for two separate reasons. First, the exclusion of
dower in that contract could have no effect upon Mr Cox’s ability to bequeath
immoveable property which he acquired during the course of that marriage other
than by direct lineal succession. As the Champagne Estate was acquired during
the course of the marriage and funded by borrowing, it could never have been
the subject of legal or conventional dower. Secondly, even if the Champagne
Estate could have been the subject of legal dower but for the exclusion of legal
dower in the marriage contract, such exclusion, as the Court of Appeal held,
would have freed the Estate from the charge and would have enabled Mr Cox to
bequeath it in his Will. While the appellant is correct that article 1185 of
the Code provided that the parties to a marriage could not alter the covenants
in their marriage contract after their marriage and otherwise confer inter
vivos benefits on each other, that provision cannot assist her in the
circumstances of this case as (i) the bequest involved no alteration of the
marriage contract and (ii) a testamentary disposition is not an inter vivos
gift.
18.
Article 1347 provides a complete answer to the second submission, namely
that the Champagne Estate fell within legal dower relating to the first
marriage (on the assumption that such dower had not been excluded by contract).
The Estate could not be charged with legal dower relating to the first marriage
as Mr Cox did not own it before that marriage and did not acquire it by
succession. Indeed, article 1349 hammers a further nail in the coffin of that
argument as it provides for the existence of legal dower in successive
marriages. It provides:
“The legal dower resulting from a
second marriage, when there are children born of the first, consists of a half
of the immoveables, not affected by the previous dower, which belong to the
husband at the time of the second marriage, or which accrue to him during such
marriage from his father or mother or other ascendants.
The rule is the same for all
subsequent marriages which the husband may contract, when there are children of
the previous marriages.”
This article is inconsistent with the view, which the appellant
advances, that articles 1340 and 1351 of the Code had the effect that the dower
relating to the first marriage included the whole property of Richardson Cox at
the date of his death.
19.
It follows that there was no bar on Richardson Cox against bequeathing
the Champagne Estate to his wife in usufruct and to the children of the second
marriage as owners.
20.
For completeness, the Board observes (i) that there was no evidence that
Richardson Cox owned immoveable property before the first marriage or inherited
immoveable property during that marriage which could have been charged with
dower and (ii) that the purchase of the Champagne Estate was funded by
borrowing and not by the reinvestment of funds from the sale of any such
immoveable property. There is therefore, in any event, no factual basis for the
appellant’s claim to the Champagne Estate.
Conclusion
21.
The Board will humbly advise Her Majesty that the appeal should be
dismissed. Written submissions as to costs are invited within 21 days of the
date of this Advice.
