High Court

Felix Smyth
										(Plaintiff)

v.

John Joseph Halpin and Regina Stokes
										(Defendants)

No.3136p of 1994
[20th December, 1996]

Status: Reported at [1997] 2 ILRM 38

Geoghegan J. 
The plaintiff was brought up in a house and farm situated at Mill Road, Knock, Castletown, Co. Meath. In 1987, the plaintiff decided to marry one Patricia Fox. The plaintiff intended, if he could obtain a suitable site that he could afford, to build a dwelling house for himself and his new wife. He requested his father to provide him with a site on the father’s land. According to the plaintiff’s own account (which I accept) his father’s response was in words to the following effect:-

This place is yours after your mother’s day – what would you be doing with two places?

The father suggested that the plaintiff build an extension to the family home. The reference to the plaintiff being left the place after his mother’s day did not take the plaintiff by surprise because in 1983 he had had an earlier discussion with his father in the kitchen of the house during which the father asked him did he want the place and he said he did. I accept that this conversation took place also.
For the purpose of constructing the extension to the house, the services of an architect, Mr. O’Daly were retained and his designs were done in the context that the entire house would ultimately become the plaintiff’s. In order to build the extension, the plaintiff had to apply for a loan from the First National Building Society but that society needed security. Accordingly, the site had to be transferred to the plaintiff and this was done. What emerged was in no real sense a separate house but rather a self-contained section of a house. Even if nobody knew of any conversations between father and son, I think that any reasonable person with knowledge of the family such as a friend or relation would have assumed that the intention at all material times was that the entire house would become the property of the plaintiff upon the deaths of his parents. I find it difficult to conceive that the plaintiff would ever have adopted his father’s suggestion in relation to the extension to the house if it was not understood that he was to become the ultimate owner of the entire house.
The plaintiff’s father who is now deceased made a number of wills. The earliest will that can be traced was one dated as far back as 20 April 1966. That will contained the following bequest:-

I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Ian Smyth absolutely subject at all times to the rights of my children to reside in the cottage until they shall respectively attain the age of 25 years or marry.

The Ian Smyth referred to in that devise and bequest is a brother of the plaintiff. Under the father’s next will, however, dated 13 February 1976 which again predated the relevant conversations, he made the following devise and bequest:-

I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Felix Gerard Smyth absolutely subject at all times to the rights of my children to reside in the cottage until they shall respectively attain the age of 25 years or marry.

It is to be noted therefore that as early as 1976 it was the testator’s intention that the plaintiff should ultimately receive both the house and the farm.
The next will was dated 21 October 1986. This will post-dated the original conversation but predated the discussions at the time of the engagement. The relevant devise and bequest under this will is slightly altered and reads as follows:-

I give, devise and bequeath my lands together with my dwelling house at Knock, Castletown, to my wife, Mary Anne for her life and thereafter to my son, Felix Gerard but subject to the right of my daughters, Ann and Regina to have the option to choose a half-acre site each off my lands for the purpose of erecting a dwelling house thereon. Ann and Regina are to have the option for a period of four years from the date of my death.

The ‘Regina’ referred to is the second named defendant in this action. It is to be noted that under the 1986 will also subject to the option in relation to the sites, the plaintiff was to get the house and lands after his mother’s death. The next will which was the second last will of the deceased is dated 25 June 1991 and is of considerable interest. Under that will, the lands at Knock were devised and bequeathed to the plaintiff’s mother for her life and thereafter to the plaintiff absolutely. The dwelling house at Knock was bequeathed to the plaintiff’s mother for her life and thereafter to the second named defendant absolutely. It is clear that at that stage the deceased changed his mind in relation to the dwelling house. Finally, under the last will dated 23 July 1992, the plaintiff appointed the first named defendant and one Thomas Smyth (now deceased) to be executors of the will and he devised and bequeathed the lands at Knock to his wife Mary Anne for her life and thereafter to the plaintiff absolutely. But he also devised and bequeathed the dwelling house at Knock to his wife for life and thereafter to the second named defendant, that is his daughter Regina absolutely. Various pecuniary legacies were given to other children and the will then contained the following devise and bequest which is also of some controversy in these proceedings:-

I give, devise and bequeath to my son, Felix Gerard the right of way currently used by him for the benefit of his property over the lands surrounding my dwelling house at Knock, Castletown absolutely.

The plaintiff of course knew nothing of the father’s change of mind in relation to the house and only learnt that when the will was read out after the death. These proceedings have now been instituted by him seeking a declaration that he is entitled to the reversionary interest in the dwelling house expectant after the lifetime of Mary Anne Smyth. He is also seeking an order by the court directing that the first named defendant do transfer to the plaintiff the interest to which the plaintiff is entitled to. Alternatively, the plaintiff is seeking to recover the monies expended on the house and he is also seeking to establish that the right of way given to him under the last will is a right of way across the garden attached to the deceased’s dwelling house to the rear of the dwelling and not the alternative right of way as apparently suggested by his mother and the second named defendant.
The plaintiff does not and indeed cannot ground his action upon contract. He does not suggest that there was any agreement on his part to confer any benefit on his father in return for making over the dwelling house. The fact that the plaintiff has not tried to make that very convenient case is to his overall credit in my view when assessing the credibility of his evidence. It might have been easy for him to have suggested that the father indicated that it would suit him if the plaintiff could look after him and his wife in their old age and that in return for that he would allow him build an extension to the house for immediate living in and give him the entire house in due course along with the land. Although such an agreement would not have been in writing or indeed evidenced by writing, it might have been quite a simple matter to establish it through acts of part performance. However, none of that arises. The plaintiff does not suggest that there was a contract. His claim to have the reversionary interest transferred to him is an equitable claim based on the principle of proprietary estoppel. The question I have had to consider therefore is whether in the light of the authorities on proprietary estoppel the facts of this case give rise to a proper recourse to that principle and if so, whether the application of the principle of proprietary estoppel in this case actually requires that this Court make an order directing a transfer of the reversionary interest. The granting of the latter remedy would effectively involve permitting the estoppel to be used as a sword and not merely a shield and would also be an exceptional inroad into the well established principle that equity will not complete an uncompleted gift.
The kind of proprietary estoppel invoked in this case has its origins in Dillwyn v. Llewelyn (1862) 4 De GF & J 517. In that case a father had placed a son in possession of land and at the same time signed a document which was intended to be a conveyance of the land to him but proved not to be sufficient for the purpose. The son, with the full approval of the father, built a house on the land and occupied it as his own residence. After the father’s death, he claimed and obtained a court declaration that he was beneficially entitled to the land and an order requiring the trustee to whom the father had devised the land under his will to convey it to him. Two important principles emerged from that case. First of all the extent of the estate to be handed over was determined not by what was in the document but by the nature of the transaction and the entitlement then to that estate arose by reason of the expenditure acquiescence. The same principle has been applied in a number of other English cases. In Inwards v. Baker [1965] 1 All ER 446, for instance, the Court of Appeal held that in a case where a father had suggested to his son that he build on his land which the son then did largely at his own expense, the son had an equity to remain in the house for the rest of his life notwithstanding that the father in fact left all his property to a lady with whom he had lived for some years and the two children he had by her. The son who lived in the house in that case was unmarried and the court took the view that a life interest was sufficient. The following passage from the judgment of Lord Denning MR at p. 449 illustrates the position:- 

In this case, it is quite plain that the father allowed an expectation to be created in the defendant’s mind that this bungalow was to be his home. It was to be his home for his life or, at all events, his home as long as he wished it to remain his home. It seems to me that, in the light of that equity, the father could not in 1932 have turned to the defendant and said ‘you’re to go, it is my land and my house’. Nor could he at any time thereafter so long as the defendant wanted it as his home.

Counsel for the plaintiffs put the case of a purchaser. He suggested that the father could sell the land to a purchaser who would get the defendant out but I think that any purchaser who took with notice would clearly be bound by the equity. So here, too, the plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as a result of that expenditure he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case that it can be satisfied by holding that the defendant can remain there as long as he desires to use it as his home.

The important sentence in that passage is:-
It is for the court to say in what way the equity can be satisfied.

As I understand the authorities, the court is at large as to how best it will protect the equity and of course it has to consider what the equity is. In this case the clear expectation on the part of Mr. Smyth was that he would have a fee simple in the entire house. The protection of the equity arising from the expenditure therefore requires in this case that an order be made by this Court directing a conveyance of that interest to him. The same principle is well enunciated in the judgment of Cumming-Bruce LJ in Pascoe v. Turner [1979] 2 All ER 945 at p. 950 where the following passage appears:-

 So the principle to be applied is that the court should consider all the circumstances and the counter-claimant having at law no perfected gift or licence other than a licence revocable at will, the court must decide what is the minimum equity to do justice to her, having regard to the way in which she changed her position for the worse, by reason of the acquiescence and encouragement of the legal owner. The defendant submits that the only appropriate way in which the equity can here be satisfied is by perfecting the imperfect gift as was done in Dillwyn v. Llewelyn.

Later on in the judgment at p. 951, Cumming-Bruce LJ had this to say:-

We are satisfied that the problem of remedy on the facts resolves itself into a choice between two alternatives; should the equity be satisfied by a licence to the defendant to occupy the house for her lifetime or should there be a transfer to her of the fee simple?

The main consideration pointing to a licence for her lifetime is that she did not, by her case at the hearing, seek to establish that she had spent more money or done more work in the house than she would have done had she believed that she had only a licence to live there for her lifetime. But the court must be cautious about drawing any inference from what she did not give in evidence as the hypothesis put is one that manifestly never occurred to her. Then it may be reasonably held that her expenditure and effort can hardly be regarded as comparable to the change of position of those who have constructed buildings on land over which they had no legal rights.

The court went on to take the view that the equity established in that case could only be satisfied by granting a remedy which ensured to the defendants security of tenure and quiet enjoyment. The court therefore ordered that the gift be perfected by the execution of the appropriate conveyance.
In my view, the plaintiff has clearly established that he falls within these principles. The only remaining question to be considered is the right of way. I am entirely satisfied that having regard to all the surrounding circumstances of the case, the right of way being referred to in the will is the way which has been used by the plaintiff close to the house. It is unfortunate that there is now bad feeling between the plaintiff on the one hand and his mother and sister on the other hand who are occupying the original part of the house. I would hope therefore that the plaintiff would be as considerate and tactful as he can in the use of the right of way but I will declare his entitlement to it as I do not find it credible that the way referred to in the will is the other right of way for the benefit of the farm.
I will direct that an appropriate deed or instrument be executed to effect the vesting of the remainder interest in the house in the plaintiff and I will discuss further with counsel as to the nature of that document and as to who are to be the parties to it.