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Johns, Re [1971] PGSC 24; [1971-72] PNGLR 110 (29 April 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 110 - Johns, Re

[1971-72] PNGLR 110

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE JOHNS

Port Moresby

Kelly J

30 March 1971

29 April 1971

WILLS, PROBATE AND LETTERS OF ADMINISTRATION - Proved original will destroyed - No evidence of any provisions in will disposing of estate in remainder upon life interest or residue of estate - Life tenant died - No surviving next-of-kin of testator - Escheat - Bona vacantia - Reception of common law of England into Papua and New Guinea - Extent to which regard is to be given to statutes in force in England - Courts and Laws Adopting Ordinance 1889, s. 4[cxxxvii]¹.

A testator died in 1933. At the date of his death, the principal asset in his estate was the unexpired term of a Crown lease. The Supreme Court granted an order to administer the estate with the will annexed. The testator�s widow who survived him, was given possession of a life interest in the lease which she took under the terms of the will and this interest was registered. The original will was destroyed by fire, and there was no sufficient evidence of its contents. At the date of death of the testator, so far as could be ascertained, there were no next of kin. The life tenant died.

Held:

N1>(1)�� The estate should be administered as on a partial intestacy; there was no total intestacy, as the life tenant had enjoyed the interest she was given under the will.

N1>(2)�� In accordance with the Probate and Administration Ordinance 1913-1940 (Papua), the widow was entitled to one-half share of the reversionary interest comprising the residue of the estate.

N1>(3)�� By the common law in force in Papua at the date of the testator�s death, as modified by the Administration of Estates Act, 1925 (Eng.), interests in realty which have no other owner pass to the Crown as bona vacantia. The remaining half of the testator�s property fell within this category.

Per curiam: Escheat to the Crown is not a concept which now applies in the Territory of Papua.

The extent to which regard is to be had to English statutory law in determining what are the principles of common law and equity that are for the time being in force in England, and, subject to its applicability to the circumstances of the Territory, consequently in force in Papua by virtue of the Courts and Laws Adopting Ordinance 1889, s. 4, and the effect of Booth v. Booth [1935] HCA 15; (1935), 53 C.L.R. 1, and Murray v. Brown River Timber Company Ltd. [1964] P. & N.G.L.R. 167, considered.

Application under the Probate and Administration Ordinance 1913-1940 (Papua) (as applied by the Probate and Administration Ordinance 1951).

On 6th September, 1933, Robert Richard Johns (the deceased) died at Samarai leaving a will, and administration with that will was granted on 13th March, 1934, to the Public Curator of Papua. The Public Curator of the Territory of Papua and New Guinea (the applicant) applied for an order as to the manner in which the residue of the estate of the deceased in the applicant�s possession should be disbursed.

All further relevant facts appear in the reasons for judgment hereunder.

Counsel:

Griffin, for the applicant.

Cur. adv. vult.

29 April 1971

KELLY J:� [His Honour referred to the nature of the application made and then continued with his judgment as follows.]

The deceased died at Samarai on 6th December, 1933, leaving a will. An order to administer the estate of the deceased with the will annexed was granted to the Public Curator of Papua on 13th March, 1934. All records relating to grants of probate and administration of deceased estates before 1946 which were kept in the registry of this Court have been destroyed by fire, so that the original will in respect of which the order to administer was made is no longer in existence. There is no copy of the will among the records of the Public Curator and enquiries have failed to reveal any copy.

The principal asset in the estate was a lease of land at Matadona for a term of ninety-nine years (plus an extension of five years) from 5th December, 1907, granted under the Land Ordinance of 1906 and on which a plantation was operated. Memorials on the official copy of the lease in the office of the Registrar of Titles record transmission to the Public Curator registered on 21st July, 1937, and a transfer from the Public Curator to Caroline Mary Johns of a life estate registered on the same date. It is apparent that the life estate to Caroline Mary Johns, who was the widow of the deceased, was given to her by the will. Caroline Mary Johns died at Brisbane on 2nd March, 1960, and on 21st March, 1962, an order to administer her estate with the will was granted by the Supreme Court of Queensland to the Public Curator of Queensland, and that order was resealed in this Court on 7th August, 1963.

The Public Curator has caused inquiries to be made in an endeavour to ascertain the contents of the will of the deceased in respect of which the order to administer was made. The only results which emerged from these inquiries were, firstly, a letter from the widow of the deceased written in 1954 in which she said that she did not receive a copy of the will and could not remember its terms, it having been read to her in the office of the magistrate at Samarai (who has since died) but that, as far as she could remember, after her death Matadona was left to the four children of the late F. R. Berge who, as far as she could remember, was the executor of the will. F. R. Berge and his four children all predeceased the deceased, having been drowned in 1930. The only other information came from a Mr. Tom Craig of Samarai who in 1954 informed the Public Curator verbally that he did not see a will but that he understood from the deceased, whom he knew personally, that the plantation would go to May Berge, wife of the deceased executor; he was not, however, in a position to swear an affidavit in the matter. May Berge died at Brisbane on 27th November, 1940.

The Public Curator also made inquiries for the purpose of locating the next-of-kin of the deceased. In 1965 he caused advertisements for this purpose to be inserted in newspapers published in both Brisbane and Sydney; it appears that the deceased, who was aged sixty-two at the time of his death, had been born in New South Wales and had spent thirty-one years in New South Wales and Queensland, and the balance of his life in Papua. The advertisements stated that the deceased was believed to have had three brothers named Tom, Alfred and Rees, and two sisters named Mary and Elizabeth, but the source of this information is not known. There was no response to these advertisements and inquiries made by the Public Curator through official channels failed either to locate or to produce any information concerning the reputed brothers and sisters referred to in the advertisements. The ultimate result of all the inquiries was that nothing could be discovered as to the whereabouts or even the existence of any next-of-kin.

Other inquiries made by the Public Curator related specifically to whether the testator had issue. Long term residents of Samarai of whom these inquiries were made, were not aware of the deceased having had any issue and a search of the birth and death registers of Papua and New Guinea did not reveal any. The Public Curator had been advised that a similar search of the registers of the various Australian States would be an undertaking of such magnitude as to be impracticable. The death certificate of the deceased records that he had no issue either living or deceased.

By an order made under s. 24 of the Probate and Administration Ordinance 1913-1940 of the Territory of Papua on 22nd December, 1966 the Public Curator was authorised to sell the land described as Matadona. The land was sold for $3,500 and the Public Curator now holds $2,918.67 on behalf of the estate of the deceased.

The first question which arises is whether there is evidence on which I may properly act as to the terms of the will. I am satisfied that the original will in respect of which the order to administer was made has been destroyed and that no copy of that will is discoverable. Quite apart from the form in which the evidence comes before me, I would not be prepared to accept as reliable the information supplied by the widow of the deceased in 1954 as it is obviously based on an imperfect recollection of a document which had been read to her. I would rely even less on the information given by Mr. Craig. I am therefore left in the position that, apart from the life interest in Matadona which in view of the memorials on the official copy of the lease I may safely infer was given by the will to the widow, the terms of the will are not known and, as far as I can see, are never likely to be known. I am satisfied that the Public Curator has taken all reasonable steps in an endeavour to ascertain the terms of the will and it would appear that there is nothing further that could be done in this regard.

In the case of a will in existence after the death of a testator but lost before the making of a grant and the contents of which ar e totally unknown, there is authority for the making of a grant of administration as on intestacy (on justifying security) until the original will shall be found and brought into the registry (In the Goods of Benjamin Campbell[cxxxviii]²�) and in Tristram and Coote�s Probate Practice, 22nd ed. (1964), p. 550, it is said �Where the Court is entirely satisfied that a will has been destroyed, that there is no copy in existence, and that no one has knowledge of its contents, it will allow application to be made for a grant �as in an intestacy��imposing no limitations�, although no authority is cited for this proposition.

The position here differs from either of the above cases in that a grant of administration with the will has been made and administration has proceeded under it. In Campbell�s case the will, although lost, was not known to have been destroyed so there was at least the possibility that it might at some later date be discovered and brought into the registry. In the circumstances referred to in the passage in Tristram and Coote there would be no possibility of the original will being brought in but the Court would first have to be satisfied that there was no reasonable likelihood of the will being proved by the giving of evidence as to its contents which was sufficiently cogent to be accepted (as in Sugden v. Lord St. Leonards[cxxxix]³; see also Woodward v. Goulstone[cxl]⁴; Re Estate of Wippermann; Wissler v. Wippermann[cxli]⁵�).

In this case I regard it as a remote possibility that evidence of sufficient cogency to satisfy a court as to the contents of the destroyed will would ever be forthcoming, having regard to the enquiries which have been made, the time which has elapsed and the deaths which have occurred in the interim. In these circumstances I do not consider that I would be justified in allowing the residue of this estate to remain undistributed any longer. I think it is so improbable that the contents of the will will ever now be known that I should proceed as though the Public Curator were administering an estate in which there was an intestacy as to the reversionary interest which comprises the residue of the estate. I do not consider that there is any purpose to be served by further advertising or that it is necessary to order the making of enquiries of any other persons.

The applicable Ordinance is the Probate and Administration Ordinance 1913-1940 (Papua). Although this Ordinance was repealed by the Probate and Administration Ordinance 1951 of the Territory of Papua and New Guinea it continues to apply to the estates of persons who died before the commencement of the latter Ordinance (s. 4(2) ). Section 58 of the former Ordinance authorises the Court to make such order with reference to the distribution or application of any moneys which the executor or administrator or curator may have in hand or as to the residue of the estate as it may think fit.

Section 20 of the Probate and Administration Ordinance 1913-1940 provides:

�Any husband or wife shall be entitled on the death of the other as to the estate as to which he or she dies intestate after the commencement of this Ordinance to the following shares only:

(a)�� Where there is issue surviving to one-third share of such property;

(b)�� where there is no issue surviving and in case of total intestacy�

(i)�� where the net value of the property of the deceased does not exceed the sum of Five hundred pounds to the whole of such property;

(ii)�� where the net value of such property exceeds the sum of Five hundred pounds to the sum of Five hundred pounds absolutely and exclusively which sum with interest thereon from the date of the death until payment at the rate of Four pounds per centum per annum shall be a charge upon the whole of such property; and in addition thereto to one-half share of the residue of such property after the payment of such sum of Five hundred pounds and interest if any;

(c)�� where there is no issue surviving and in case of partial intestacy to one-half share of such property.�

I am satisfied that there is no issue surviving the deceased, but I do not consider that I am entitled to proceed as though there had been a total intestacy. There was no intestacy as to the life interest which the widow has already enjoyed so that the intestacy is only as to the reversionary interest and is therefore a partial intestacy (see In re McKee; Public Trustee v. McKee[cxlii]⁶�). The applicable provision is therefore paragraph (c) of s. 20 and the widow became entitled on the death of her husband to one-half share of the reversionary interest. The fact that this interest could only become an interest in possession, after her own death is not to the point, as what she became entitled to by the operation of s. 20 is one-half share of the estate as to which her husband died intestate, that is the reversionary interest.

The balance of the estate as to which the deceased died intestate is then divisible among the next-of-kin pursuant to s. 21. For the purpose of that section the widow is not included amongst the next-of-kin. The widow is not in the ordinary sense one of the next-of-kin (Garrick v. Lord Camden; Patton v. Jones[cxliii]⁷�). When used simpliciter in a will the primary meaning of the expression �next-of-kin� is �the nearest blood relation of the testator at the date of his death� (Gutheil v. Ballarat Trustees, Executors and Agency Co. Ltd.[cxliv]⁸�). In Gutheil�s case[cxlv]⁹�Isaacs J. refers to the natural and obvious meaning of the words as �nearest in proximity of blood�. There is nothing in s. 21 which would require these words to be given any other meaning.

There are no known next-of-kin discoverable after due enquiry so that the property which under s. 21 would otherwise be divisible among the next-of-kin should be dealt with on the assumption that there are no next-of-kin (Re Menday[cxlvi]¹⁰�).

The property now under consideration, namely the one-half share in a reversionary interest in a lease for ninety-nine years under the Land Ordinance of 1906 is �real estate� for the purpose of the Probate and Administration Ordinance 1913-1940 (see the definition of �real estate� in s. 4) and this is not affected by the fact that since the death the property has under the authority of an order of the Court been converted into money. If escheat to the Crown were applicable in Papua, I am by no means certain that it could properly be applied to a share in a reversionary interest in a lease from the Crown. However, I do not find it necessary to go into that aspect as I do not consider that escheat now applies in the Territory of Papua. Escheat is a common law concept, the operation of which prior to its abolition in England by statute had been affected by such statutes as the Intestates Estates Act of 1884, by s. 4 of which it was provided that from and after the passing of that Act, where a person dies without an heir and intestate in respect of any real estate consisting of any estate or interest whether legal or equitable in any incorporeal hereditament, or of any equitable estate or interest in any corporeal hereditament, whether devised or not devised to trustees by the will of such person, the law of escheat shall apply in the same manner as if the estate or interest above mentioned were a legal estate in corporeal hereditaments.

The operation of escheat in Papua is assumed, for instance, by s. 31 of the Probate and Administration Ordinance 1913-1940 (which limits its operation in the case of a person dying intestate and without heirs or next-of-kin to the residue remaining after the payment of debts) and by s. 25 of the Succession Act of 1867 (Queensland, adopted), but so far as I can discover its operation is nowhere expressly provided for in any Ordinance of the Territory or in any adopted legislation which is or has been in force in Papua. Escheat therefore would only apply in Papua by reason of s. 4 of the Courts and Laws Adopting Ordinance of 1889 which is as follows:

�The principles and rules of common law and equity that for the time being shall be in force and prevail in England shall so far as the same shall be applicable to the circumstances of the Possession be likewise the principles and rules of common law and equity that shall for the time being be in force and prevail in British New Guinea.�

Escheat to the Crown was abolished in England by s. 45 of the Administration of Estates Act 1925.

The extent to which regard is to be had to English statutory law in determining what are the principles and rules of common law and equity that are for the time being in force in England and, subject to its applicability to the circumstances of the Territory, consequently in force in Papua or New Guinea as the case may be, has been considered both by the High Court and by this Court. In Booth v. Booth[cxlvii]¹¹�s. 16 of the Laws Repeal and Adopting Ordinance 1921-1933 (New Guinea) was under consideration.

That section provided that:

�The principles and rules of common law and equity that were in force in England on the ninth day of May, one thousand nine hundred and twenty-one, shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or inconsistent with the provisions of any Act, ordinance, law, regulation, rule, order or proclamation having the force of law that is expressed to extend to or applied to or made or promulgated in the Territory.�

Rich and Dixon JJ. said[cxlviii]¹²:

�It is so evidently the intention of the ordinance to introduce, subject to local ordinances and to the specified enactments of Queensland and Papua, the whole content of English law applicable to the circumstances of New Guinea that a very wide meaning should be given to s. 16 in spite of the difficulties which its language presents. Probably the principles and rules of common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9th May, 1921.�

Starke J.[cxlix]¹³said:

�The development of the rules of English law relating to the proprietary rights of husband and wife has been continuous, and the rules of the common law, the doctrines of equity, and statutes, have all played a part in this development. The provisions of the Married Women�s Property Acts in force in England on 9th May, 1921 may therefore be regarded as part of �the principles and rules of common law and equity� referred to in s. 16 of the Laws Repeal and Adopting Ordinance.�

In Murray v. Brown River Timber Co. Ltd.[cl]¹⁴�Mann C.J. had to consider s. 4 of the Courts and Laws Adopting Ordinance and he concluded that the common law adopted in the Territory of Papua by virtue of s. 4 includes the common law in England at the present time as it would appear if unaffected by statutes which the Territory courts would not be prepared to regard as incorporated into the general structure of the common law applicable to the Territory.

At this point of time a definite pronouncement by an appellate court on the meaning of s. 4 of the Courts and Laws Adopting Ordinance is lacking and the wide statement by Rich and Dixon JJ. in Booth v. Booth[cli]¹⁵�in relation to the comparable provision of the Laws Repeal and Adopting Ordinance is clearly obiter. However, I consider that it is correct to regard s. 4 as going at least as far as incorporating in the law of Papua such of the principles and rules of the common law of England as had not been abrogated by statute from time to time, and provided that they are applicable to the circumstances of the Territory, so that in the present case where what was a rule of the common law has been abolished by statute in England and consequently is no longer in force there, then that common law rule is no longer in force in Papua. On this view it follows that escheat did not operate in Papua at the date of death of the deceased.

It next becomes necessary to consider whether the statutory provision in force in England which has replaced the abrogated common law rule is thereby in force in Papua as then being part of the principles of common law and equity referred to in s. 4. In present case the same English statute which abolished escheat to the Crown provided by a subsequent section (s. 46(1) (vi)) that the residuary estate of an intestate to which no person took an absolute interest in accordance with the provisions of the statute should belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat. In effect what was done was to preserve the principle of the property going to the Crown but to substitute for the method of escheat and the procedural requirements involved (as to which see the discussion of the history of escheat by Wanstall J. in Re Bonner (deceased)[clii]¹⁶�as the means of achieving this, the simpler procedure of the property passing to the Crown as bona vacantia as was already the common law rule in relation to personalty which had no other owner. This may be regarded as a statutory modification in the application of a principle or rule of the common law to the extent that having abolished one common law principle, namely, that of escheat to the Crown in the case of realty another principle, that of ownerless property passing to the Crown as ultimus haeres was extended to cover interests in realty. Without finding it necessary to consider the limits of the dictum of Rich and Dixon JJ. in Booth v. Booth[cliii]¹⁷�I would consider that the common law in force in Papua as at the date of death of the deceased included a rule that interests in realty which had no other owner passed to the Crown as bona vacantia, there being no basis on which it could be said that such a rule would not be applicable to the circumstances of Papua.

In applying this principle to the present case I do not consider that the restricted meaning of bona vacantia as meaning the residuary estate of a person dying intestate without husband or wife should be adopted (see Dyke v. Walford[cliv]¹⁸) in view of the provisions of s. 20 of the Probate and Administration Ordinance 1913-1940 to which regard must be had and which in this instance limits the wife�s entitlement to one-half share of the property, and the situation which arises whereby, by the joint operation of ss. 20 and 21 of that Ordinance, there is property which has no other owner. The remaining one-half share of the property as to which the deceased must be treated as having died intestate should therefore be paid to the Treasurer on behalf of the Crown.

The order which I make is that the costs of and incidental to this application be paid out of the residuary estate of the deceased and that the balance remaining in the hands of the Public Curator after the payment of such costs and any other disbursements which may properly be made out of such residue be disbursed as follows, namely, one-half to the Public Curator of Queensland as administrator of the estate of Caroline May Johns deceased and one-half to the Treasurer of the Territory of Papua and New Guinea.

Costs to be paid out of residuary estate.

Balance thereof to be disbursed as upon a partial intestacy.

Solicitor for the applicant: J. Anthony Griffin.

[cxxxvii]Infra, at p. 117.

[cxxxviii](1829) 2 Hagg. Ecc. 555; 162 E.R. 955.

[cxxxix][1876] 1 P.D. 154.

[cxl][1886] UKLawRpAC 37; (1886) 11 App. Cas. 469, at p. 475.

[cxli][1955] P. 59.

[cxlii] [1931] 2 Ch. 145 at p. 149.

[cxliii](1807) 14 Ves. 372, at p. 385; [1807] EngR 435; 33 E.R. 564, at p. 568.

[cxliv][1922] HCA 19; (1922) 30 C.L.R. 293, per Knox C.J., at p. 299.

[cxlv](1922) 30 C.L.R., at p. 305.