O'Connell v Harrison

• Jurisdiction: Ireland
• Judgment Date: 18 January 1927
• Date: 18 January 1927
• Court: Unspecified Court

O'Connell v. Harrison.

In the MATTER of the Trusts of a Sum of £651 18s., Cash Lodged by Sir John Robert O'Connell to the Credit of the Matter of Elizabeth Harrison, a Person of Unsound Mind, and Separate Credit of the Residuary Bequest contained in the Will of Margaret Wooloughan, pursuant to Order in that Matter, dated 2nd day of March, 1923; SIR JOHN ROBERT O'CONNELL

and

HENRY HARRISON

Ownership of shares - Joint purchase by two sisters - Whether joint tenancy or tenancy in common - Evidence admissible - Evidence which establishes tenancy in common - One sister becoming of unsound mind - Power of Court in Lunacy to sever joint tenancy-When such severance is advisable.

A number of shares in the N. bank were on two separate occasions, purchased for the account of two sisters, M.W. and E.W., and were transferred into their joint names. No evidence was forthcoming as to the source of the money paid or the proportions in which it was contributed for either of the two purchases of these shares. M. W. and E. W. had, previous to the first purchase of shares, acquired their deceased father's business and his investments under his will, including inter alia a number of shares in the N. Bank. M.W. and E.W. subsequently entered into a deed whereby they agreed to carry on their father's business for their mutual benefit as tenants in common and not as joint tenants, and to hold their father's shares equally as tenants in common and not as joint tenants. E.W. married, and subsequently was declared (by her then name of E.H.) to be of unsound mind, and was taken under the care of the Court. Her sister, M.W., having been appointed to be Committee of her person and property, brought in a statement of facts, duly verified by affidavit, wherein she stated that one half of the entire holding of the shares in the N. bank was the property of her sister, E. H., and asked for an order to have these shares transferred into Court to the credit of the matter. The Lord Chancellor made an order declaring that these shares were the property of E.H., and ordering M.W. to sell them and lodge the proceeds to the credit of the matter, which M.W. did. M.W. retained the other half of the entire holding of the shares as her own. Both M.W. and E.H. died, and a question arose as to the nature of the ownership of the shares that they had purchased.

Held by Kennedy C.J., that even if the shares were purchased out of moneys contributed in equal amounts, and though transferred into the joint names of M.W. and E.H., the shares were held by them in equity as tenants in common.

Per Kennedy C.J.: If the only fact be a joint purchase made out of moneys equally contributed, no equity intervenes to take the property out of joint tenancy and reduce it to a tenancy in common, yet evidence is admissible as to the surrounding circumstances, as to the conduct of the parties, whether before or after the purchase, and as to statements against interest (but not as to statements of intention), and such evidence may establish the true intention of the joint purchasers to have been a purchase for a beneficial tenancy in common, and displace or rebut the inference of joint tenancy which the Court would draw from the fact of equal contribution of the purchase money standing alone.

The personal representative of E.H. contended, on the assumption that the shares were held in joint tenancy, that that tenancy was not severed by the action of the Court in the lunacy matter.

Held by Kennedy C.J., that the Court had power under its statutory jurisdiction to sever such a joint tenancy as alleged, and to realise the patient's share, if the patient's interest and benefit so required. And E.H.'s interest did require the severance of the joint tenancy (if existing), first, on account of her limited means, her income being insufficient to pay for her maintenance, so that her interest in the shares had to be realised; and, secondly, because the shares were liable to heavy calls, and from this liability it was essential that her estate should be freed.

Originating Summons.

The plaintiff, Sir John Robert O'Connell, asked for a declaration that he was entitled, as executor of Margaret Wooloughan, to the sum of £651 18s. The defendant, Henry Harrison, was the personal representative of Elizabeth Harrison, who was a person of unsound mind, and a lunatic, so found. Margaret Wooloughan and Elizabeth Harrison (née Wooloughan) were sisters, and had both been possessed of considerable means, including certain shares in the National Bank, Ltd. Margaret Wooloughan had died in the year 1922, and Elizabeth Harrison in 1924. The sum of £651 18s. was the proceeds of the sale of thirty-two National Bank shares (after the deduction of a certain sum for executor's costs), and the shares had remained in the books of the bank in the joint names of Margaret Wooloughan and Elizabeth Harrison, after another thirty-two shares had been sold by order of the Lord Chancellor, dated 11th June, 1921, in the lunacy matter, and lodged to the credit of the matter. By order of the 23rd of April, 1923, the Committee of Elizabeth Harrison had joined with Sir John Robert O'Connell, as executor of Margaret Wooloughan, in the sale of these shares. The sum realised, after a deduction for executor's costs, amounted, as already stated, to the said sum of £651 18s., which was then lodged by Sir John Robert O'Connell to the credit of the matter of Elizabeth Harrison, and separate credit of a residuary bequest made in the will of Margaret Wooloughan, pursuant to an order of the 2nd March, 1923. Some of the said shares had been purchased by a firm of stockbrokers for the account of Margaret Wooloughan and Elizabeth Harrison (then Elizabeth Wooloughan), and transferred into their joint names; and the question which had to be determined on this summons was whether these shares so purchased had been held by them as joint tenants or as tenants in common.

The application was grounded on the affidavit of Patrick Rooney, the plaintiff's solicitor. The facts are fully stated in the judgment of the Chief Justice.

Cur. adv. vult.

Kennedy C.J.:—

The plaintiff...