Restitution Discussion Group Archives
| Sender: |
Eoin O'Dell |
| Date: |
Fri, 30 Mar 2001 19:24:41 +0100 |
| Re: |
Just when you thought it was safe to go back to the list |
Dear all,
Allan Axelrod wrote, further to my message on In
re Cahill, in which the recipient under a will of property which was
omitted from a deed was deemed to hold the property on constructive trust
for the beneficiary of the deed, that in US law,
1. the same result would have been effected through
the court's reforming the instrument to include the inadvertently
omitted property [a reformation effective against the testator's successor
who was not a purchaser for value] 2. if reformation had been the theory of decision,
it might have been noted that the deed was being reformed up--ie to
include more property than the original writing. US cases have held 'reforming up' is improper as
to land because of the Statute of frauds For what it's worth, such reformation or rectification
would also have been available in England and Ireland, and would have
provided a much sounder justification than the remedial constructive trust
for the result in In re Cahill. For example, in Lister v Hodgson (1867)
LR 4 Eq 30, where the donor intended to make a gift of £300 by deed to
the claimant, but in fact made it to the defendant, and subsequently died,
Lord Romilly MR held that the deed could be rectified on the application
of the claimant. Again, in the Irish case of McMechan v Warburton [1896]
1 IR 435 (Chatterton VC); aff'd [1896] 1 IR 441 (Ir CA), the donor intended
to settle certain shares upon the claimant, but the solicitor in error
omitted this from the deed; after the donor's death, the claimant successfully
sought rectification of the deed. In Craddock Brothers v Hunt [1923] 2
Ch 136 (CA) the Court of Appeal that, where a conveyance was intended
by vendor and purchaser to convey property to the purchaser but, because
of mistake shared by both parties in reducing the oral agreement to writing
and drawing up the conveyance, it was instead conveyed to the defendant,
the purchaser could have the deed rectified. Craddock was followed in
Ireland in Lac Minerals v Chevron Mineral Corporation of Ireland and Ivernia
[1995] 1 ILRM 161 (Ir HC; Murphy J). Craddock in particular shows that
no point has been taken that rectifying up is improper as to land because
of the Statute of frauds.
Conversely, although many US cases do in fact take the
reformation (rectification) route, they also take the constructive trust
route. In In re the Estate of Tolin 622 So 2d 988 (1993) the testator
had destroyed a copy of a codicil to his will, in the mistaken belief
that it was the original codicil, intending to revoke it. The Supreme
Court of Florida held that this was insufficient to revoke the codicil,
but held that the beneficiary under the codicil was unjustly enriched
at the expense of the intended beneficiary under the will.
Best,
Eoin.
EOIN O'DELL BCL(NUI) BCL(Oxon)
Editor, Dublin University Law Journal.
Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland.
(353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m)
(All opinions are personal. No legal responsibility whatsoever is accepted.)
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
