Freeley v Greene

• Jurisdiction: Ireland
• Judgment Date: 18 March 1932
• Date: 18 March 1932
• Court: Supreme Court (Irish Free State)

Supreme Court.

Owens v. Greene and Freeley v. Same

REVEREND MICHAEL J. OWENS

Plaintiff

and

JOHN GREENE

Defendant

and

PATRICK FREELEY

Plaintiff

and

SAME,Defendant (1)

Deposit receipt - Depositor depositing money in his own name and that of another - Money deposited payable "to them or either of them" - Dominion over deposit receipts retained by depositor - Death of depositor - Claim by survivor - Resulting trust - No declaration of trust by depositor - Attempted nuncupative testamentary disposition - Incomplete gift.

Appeal by the defendant from the Judgment of Meredith J., given on June 16th, 1931, in two actions which were tried together.

The facts as set out in the statement of claim in the first action (Owens v. Greene) were as follows:—

"1. Austin Freeley, late of Carrowreagh, Ballyhaunis, in the County of Mayo, died on the 29th day of December, 1930.

2. By order, dated the 13th February, 1931, made in the matter entitled: '1931. No. 50. In the High Court of Justice, between John Greene (the defendant herein), plaintiff, and Thomas Cooney and Patrick Freeley,' being a suit brought to establish in solemn form of law the last will of the said Austin Freeley, deceased, the defendant herein was appointed administrator pendente liteof the estate and effects of the said Austin Freeley, deceased.

3. Prior to the death of the said Austin Freeley, deceased, the Ulster Bank, Limited, were indebted to the said Austin Freeley, deceased, and the plaintiff, jointly, in sums amounting to £10,826 6s. 3d. with interest thereon, being monies placed by the said deceased upon deposit account at the Ballyhaunis branch office of the said bank, and comprised in certain deposit receipts issued by the said bank, wherein the said monies were expressed to be payable to the said deceased and the plaintiff or either of them.

4. The said deceased declared that the said monies were to belong beneficially to the plaintiff in the event of the death of the deceased and were not in that event to form any part of his estate.

5. The defendant, as personal representative of the said deceased, claims that the said monies so due by the said bank form part of the estate of the said deceased and do not belong beneficially to the plaintiff, and has called upon the plaintiff to hand over to him the said deposit receipts.

6. The defendant is sued as personal representative of the said deceased.

The plaintiff claims a declaration that the said monies are not assets of the said deceased, and that the said monies belong beneficially to the plaintiff."

The statement of claim in the other action (Freeley v.Greene) was in similar terms, save that the sum mentioned in paragraph 3 was £5,000.

The defendant in his defence in each action denied the allegations in paragraphs 3 and 4 of each statement of claim and counterclaimed for declarations that: 1. the plaintiff in each action held the deposit receipt as a trustee for the defendant as personal representative of Austin Freeley;

2. the money and all interest accrued thereon formed part of the estate of Austin Freeley; 3. an injunction to prevent the plaintiffs from disposing of, cashing, or otherwise parting with the possession of the deposit receipts.

Meredith J. held that the monies mentioned in paragraph 3 of the statement of claim of each plaintiff did not form part of the estate of Austin Freeley, and that the said monies belonged beneficially to the plaintiffs.

The defendant appealed from the judgment of Meredith J. in each action, and both appeals were heard together.

A. F., an old man, kept large sums of money on deposit account in a bank in his own name for several years. In March, 1927, he called at the Bank and asked the Manager of the Bank for his deposit receipts. He told the Manager that he wished to settle his money, and that he was not able to do so until he saw Father O., but that he would like to do something for P. F. He then gave the Manager a number of deposit receipts, which he asked the Manager to put in the names of P. F. and himself, requesting the Manager to put the money in such a way that he could draw the interest without going to P. F. he Manager said that the only way that he could do that was "by putting it payable to them or either of them." A sum of £16,917, represented by ten deposit receipts, was then placed on deposit in the joint names of A. F. and P. F., the deposit receipts being left by A. F. with the Bank Manager. A couple of days later A. F. called at the Bank and stated that he wished to take £700 out of the joint account and put it in his own name, which accordingly he did, leaving £16,217 standing in the joint names on nine receipts, the receipts stating that the Bank acknowledged the receipt of the amount deposited by A. F. and P. F., and continuing:"For which we [the Bank] promise to be accountable to them or either of them" A week later A. F. cashed all the deposit receipts with interest, and, having taken the interest, re-deposited the principal sum to the same account, where it remained until May, 1929, when he again cashed the receipts, took the interest and re-deposited the principal. He subsequently withdrew the principal several times, sometimes re-depositing only a portion of the principal in both names, as before, and depositing the remainder in his own name alone. On 8th September, 1930, he called at the Bank and asked for his receipts, and stated that he was going to settle the money finally. He deposited £5,000 in the names of himself and P. F., receiving one deposit receipt, £3,506 in his own name alone, receiving one deposit receipt, and £10,826 6s. 3d. in a new deposit account, in his own name and that of Father O., receiving four deposit receipts. He told the Bank Manager that he wished no one to know anything of the monies deposited except the parties named with him in the receipts, and that the Manager could tell them that the monies were to be their property if anything happened to him, and that the receipts were to be handed to the survivors. On 15th December, 1930, A. F. withdrew the sums deposited on 8th September, retained the interest, and re-deposited the amounts as before. All these deposit receipts were in the form already stated. A. F. died on 29th December, 1930. On 8th September, 1930, A. F. had made another deposit, viz., one for £200 in the joint names of Father O. and his brother R. O., the deposit receipt in this case being in favour of them "or the survivor of them." R. O. had worked for A. F., and when making this deposit A F. asked the Bank Manager to get from R. O. a receipt acknowledging payment of all his claims up to date,

and on getting such a release to deliver the deposit receipt to R. O. This the Manager did on the same day. In October, 1930, P. F. was in the bank on business, and told the Manager that A. F. had told him (P. F.) that A. F. had left him "well off in the bank" and asked what the amount was, and the Manager told him of the £5,000 deposited in the joint names. Some days later Father O. asked the Manager the same question, and the Manager told Father O. of the four deposits in his and A. F.'s names. On the day of A. F.'s death P. F. sent for and obtained from the Manager of the Bank the deposit receipt in which he was named with A. F., and on the same day Father O. also called at the Bank and obtained the deposit receipts in which he was named with A. F.

P. F. and Father O. each instituted an action against the executor of the will of A. F. claiming a declaration that the money on deposit in the joint names of each plaintiff and A. F. did not form portion of A. F.'s estate, but belonged to each plaintiff beneficially by right of survivorship.

Held, reversing Meredith J., that the actions must be dismissed, as the plaintiffs had failed to rebut the implication of a resulting trust, which arose in favour of A. F. and his legal personal representatives as regards the deposited monies, the plaintiffs having failed to prove any intention on the part of A. F. to part with his property in, and absolute dominion over, the deposited money during his life time, and a disposition to take effect only upon his death, if he should not have previously disposed of the money, could not be effected except by a declaration of trust, which was admitted not to have been made by him.

O'Flaherty v. Browne [1907] 2 I. R. 416, applied. Diver v. McCrea,42 Ir. L. T. R. 249, disapproved.

Cur. adv. vult.

Kennedy C.J. :—

These two actions, which are concerned with the affairs of one, Austin Freeley, deceased, were tried together as one action, and the appeals, which have been taken by the defendant from the respective judgments, have also been heard together as one appeal. The defendant and appellant is the executor of the will of Austin Freeley, who died on the 29th day of December, 1930, having made his will on the preceding day. He had reached the age of 92 years. At the time of his death the old man, who had never married, was living in the residence on his farm at Ballyhaunis in the County Mayo. He had residing with him an aged sister, Mrs. Cunningham, a young cousin called Thomas Greene who had assisted in looking after him, and a nephew named Richard Owens (brother of the plaintiff—Father Michael J. Owens). He had at an earlier period of his life spent some time in the United States, and after a number of short visits he ultimately came home and settled down for the remainder of his life. Whatever may have been his occupation during his active years, as to which we have no information, he succeeded in building up a very substantial fortune before he returned to settle down at home. The largest part of his wealth consisted of cash, which for many years he kept on a number of deposit receipts in the Ballyhaunis Branch of the Ulster Bank. His active mind engaged itself in disputes with the Revenue authorities, and it would appear that he cherished a grievance—like so many of his...