McAndrew v Mulroy

• Jurisdiction: Ireland
• Judgment Date: 23 May 1924
• Date: 23 May 1924
• Court: Court of Appeal (Irish Free State)

(I. F. S.)

Appeal.

M'Andrew v. Mulroy.

In the Matter of the Estate of MULROY, Deceased. M'ANDREW

Plaintiff

and

MULROY

Defendant.

Donatio mortis causa - Validity - Symbolic dominion - Key of cash-box - Complete parting with dominion - "Stale" cheque good subject-matter of donatio mortis causa.

Adjourned memorandum for decision of donatio mortis causa claimed by defendant. The plaintiff was a sister of the deceased, Michael Mulroy, who died intestate on the 27th March, 1922. For many years he had lived with his brother, James Mulroy, the defendant. On the 24th March, 1922, deceased was in bed very ill, and he called defendant to his bedside and requested him to bring him a cash-box, and then asked for his waistcoat, took the key of the cash-box out of the waistcoat pocket, unlocked the box, and took out a deposit receipt for £650, a cheque for £104 2s. 9d. from the Congested Districts Board, and a cheque for £33 10s. from a Mrs. Gallagher. Deceased then said: "Here is all belonging to me; I am sorry I have not more to give you. You were very good to me. You will do the same for me as you did for Kitty and Torn." Defendant had arranged for the funeral of his brother, Thomas Mulroy, and his sister Kate. The papers were then returned to the cash-box, and the cash-box locked and the key returned to the deceased's waistcoat pocket. On June 21st, 1922, administration intestate was granted to the defendant, and the deposit receipt and the two cheques were included in the schedule of assets of deceased.

The defendant appealed to the Court of Appeal (1).

Deceased lived in the house of brother, the defendant, and shortly before his death told him to bring him a cash-box, which contained a deposit receipt and two "state" cheques. The key of the cash-box was in the deceased's waistcoat pocket, and he opened the cash-box with it and took out the papers, saying, "Here is all belonging to me; I am sorry I have not more to give you. You were very good to me. You will do the same for me as you did for Kitty and Tom." The papers were then put back in the cash-box, which was locked by the deceased himself, who put the key back into his vest pocket. The deceased died intestate, and the defendant was granted administration of his estate. He included the deposit receipt and the two cheques in the schedule of assets of the deceased.

Held by the Court of Appeal (Molony C.J. and O'Connor L.J., Ronan L.J. dissentiente), affirming the judgment of O'Connor M.R., that there was no valid donatio mortis causa, inasmuch as the deceased never intended to part with the actual possession of the documents in such a way as to lose dominion and control over them during his life.

O'Connor M.R. :—

The question involved in this case is whether a good "donatio mortis causa" by the deceased of his property to his brother has been made. There are three items in question—a deposit receipt and two cheques—constituting practically all the property the deceased possessed. It is admitted that there may be a good donatio mortis causa of a deposit receipt or a cheque. The cheques in this case were what are known as stale cheques; but it is admitted that a stale cheque stands in the same position as one current in the ordinary way, so there is no question of whether there could or not have been a good donatio mortis causa of these three items of property, and the only question is whether there was in fact a good transfer of property.

Approaching this question, it is to be remembered what the relations were between the deceased and the defendant. They were brothers, and apparently on the most intimate terms and much attached to each other. The deceased had lived with his brother, the defendant, all his life. During the last few years of his life he was a confirmed invalid, suffering from, and dying of, diabetes; and latterly he was confined to his bed. He received every attention in the house of the defendant, and was apparently nursed by the defendant's wife. One would expect that if any person more than another would be the object of his bounty it would be the defendant, because he owed everything to him; and if he had made a will leaving the defendant everything he had, that was exactly what one would expect. In the same way, if by any act inter vivos he had transferred everything he had to the defendant, it is what one would expect. The question in this case is whether he did in fact make an effectual and legal transfer of the property during his life. There is no necessity at this time of day to go elaborately into the law which regulates

donationes mortis causa; sufficient to say that there is one element which must be present, that is, there must be a complete parting with the dominion over the subject-matter by the donor; and the question in this case is whether there was such a complete parting with the dominion.

The evidence upon this is, in the first place, that of the defendant. Having stated that the deceased had lived with him and died with him, the defendant says that deceased was quite strong up to four days before his death. On the 24th March, 1922, he was in bed the defendant was out working; he came into the house for dinner; there were also present Patrick Cafferty, P. J. O'Grady, Daniel Mulroy, James M'Keown, and the defendant's wife. The deceased was in bed, not exactly in the kitchen, where all were assembled, but in a little room adjoining it, or recess communicating with it. The deceased said to the defendant,"Jamesie." The defendant answered, "What, Michael?" The deceased said, "Bring down the cash-box." The defendant got the cash-box. It was locked. The deceased then asked for his vest. The defendant gave it to him. The deceased called the defendant, "Come here." At that time the box was open. The way in which it was opened was undoubtedly this: the key was in the deceased's waistcoat, and either the deceased or someone else took the key out of the waistcoat and opened the box. The...