McCabe v Ulster Bank

• Jurisdiction: Ireland
• Judgment Date: 16 December 1939
• Date: 16 December 1939
• Court: Supreme Court

McCabe v. Ulster Bank, Ltd. and Others.

VERY REVEREND HENRY McCABE

Plaintiff

and

THE ULSTER BANK LIMITED, MARY DONOHOE, BEDINA (or BRIDGET) DEVINEand ANNE McGOVERN, Defendants (1)

High Court.

Supreme Court.

Advancement - Mother and child - Deposit receipt - Deposit by widowed mother in the names of herself and three married daughters - Whether the doctrine of advancement applicable - Basis of presumption of advancement - Presumption of resulting trust.

In 1917 a widow lodged £50 on deposit receipt with a bank in her own name. In 1926 she lodged £265 in the names of herself and the Parish Priest. According to the form of the deposit receipt that sum was payable to either of the persons named. In 1928 she drew out all the money then on deposit (£250) and relodged it in the names of herself and her three daughters, and the same form of receipt was used. From time to time between the years 1928 and 1932 she withdrew and relodged various sums, and, when she died in September, 1932, there was standing on deposit £225 in the same four names (her own and her three daughters') and in the same form of receipt.

Her executor brought an action in the Circuit Court for a declaration that the sum of £225 was part of her assets.

The evidence showed that the three daughters were married and living

in America. There was no evidence as to when they had gone to America or by whom they were brought up and no material facts were proved beyond the mere relationship.

The Circuit Court Judge refused the declaration sought and decided that the sum of £225 passed by survivorship to the three daughters, holding that in the circumstances he was bound to presume an intention to advance.

On appeal to the High Court the decision of the Circuit Court Judge was affirmed, as the two Judges who heard the appeal (Maguire P. and O'Byrne J.) differed in opinion: Maguire P. holding that the decision of the Circuit Court Judge should be reversed, as the evidence showed that the deceased intended to retain control of the money and to benefit her daughters by allowing them to have what was left when she died; the gift was therefore revocable and testamentary in character, and fell within the principles laid down in Gason v. RichUNK, 19 L. R. Ir. 391 and Owens v. Greene,[1932] I.R. 225, and could not be upheld, and the plaintiff was entitled to the declaration sought; O'Byrne J. holding that the decision of the Circuit Court Judge should be affirmed, as the evidence was insufficient to rebut the presumption of advancement. On appeal from the High Court:

Held by the Supreme Court (Sullivan C.J., Murnaghan, Meredith and Geoghegan JJ.) reversing the High Court, that the evidence as to the mother's intention to confer a benefit on her daughters was not sufficient to rebut the presumption of a resulting trust.

Per Murnaghan J. (Sullivan C.J. and Geoghegan J. concurring):— Neither natural affection nor moral obligation has been consistently relied on by the Courts to found the presumption of advancement, and that presumption must be based upon the obligation to make provision which a Court of Equity recognises in the case of a father, or of one who has assumed his obligation in this respect. In many cases of widowed mothers very slight circumstances may be sufficient to place the widowin loco parentis, i.e., of having assumed the father's obligation to provide. In such cases there will be a basis for the presumption, but in a case such as the one before the Court, where there were no circumstances to go upon save the mere relationship of mother and child, there was no ground for an equitable presumption which would rebut a resulting trust.

Decisions relating to advancement and resulting trusts considered by the Supreme Court.

Appeal from the Circuit Court.

The plaintiff, the Very Reverend Henry McCabe, as executor of Mary Anne Lynch, who died on September 25th, 1932, issued a Civil Bill claiming a declaration that the sum of £225, standing on deposit receipt with the Ulster Bank in the joint names of the deceased and of Mary Donohoe, Bedina (or Bridget) Devine and Anne McGovern, three of the defendants, was assets of the deceased. The said three defendants were married daughters of the deceased, and the Ulster Bank, Limited, was named as a fourth defendant so as to be bound by the order of the Court. The facts of the case have been summarised in the headnote and are set out in the judgment of Maguire P.

The said deposit receipt in the names of the deceased and her three daughters was as follows:—

"Ulster Bank Limited.
Deposit Receipt No. 36738.	Not Transferable. Ballyconnell,
£225.	6th September, 1932.

Received from Mrs. Mary Lynch, Mrs. Mary Donohoe, Mrs. Bridget Devine and Mrs. Annie McGovern, Killycliggan, the sum of Two hundred and twenty-five pounds. For which we promise to be accountable to them or any one or more of them.

For the Ulster Bank Limited.

J. Ferguson,

Manager."

The Civil Bill was heard by the Circuit Court Judge (Judge Sheehy) on June 2nd and 3rd, 1937, when he dismissed the claim, refusing the declaration sought, and instead declared that the sum of £225 passed by survivorship to the defendants, the three daughters. The plaintiff appealed to the High Court.

The plaintiff appealed to the Supreme Court (1) on the grounds (inter alia) that the Circuit Court Judge was wrong in holding that a presumption of advancement arises as between a mother and her children, or, alternatively, that he was wrong in holding that such presumption was not rebutted by the evidence.

Maguire P.: —

This case is a somewhat difficult one, raising several points of law, and we are in a difficulty because neither in the Circuit Court nor here has the Court been favoured with any arguments on behalf of the real defendants. We have, however, had the points which arise fully argued by Mr. McGonigal.

The history of the case is short and is set out by Judge Sheehy in his judgment as follows:—

" Mary Anne Lynch opened a deposit account in the Ballyconnell branch of the Ulster Bank in 1917 in her own name. Originally, I think, the amount was £50. On the 12th November, 1926, she withdrew the amount of the account, which I think had increased to £265, and lodged it in her own name and that of Father Brady."

I pause here to refer to the fact that on this occasion the old lady used the same type of receipt which was used in the subsequent transaction with which we are concerned. The form, as in Owens v. Greene and Freeley v. Greene(1),is favoured by the Northern Banks and it has the advantage that any one of a number of joint depositors can make withdrawals.

Judge Sheehy goes on:—" On the 10th February, 1928, she again withdrew the amount of the account, which, I think, was then £250, and re-lodged it in the joint names of herself and of the three defendants."

On this occasion we have the further bit of evidence that she filled up a form of request making it clear that she wished the money to be withdrawable by any one of the persons named as joint depositors. She used the word"either." Although we have not got before us the deposit receipt handed to her earlier, I take it that it was precisely the same as the one now before us and contained the words "We promise to be accountable to them or any one or more of them."

There is very little evidence of intention, and although I am somewhat doubtful, I think, having regard to the case of In re Grimes(2), we must deal with this case on the basis that there is a presumption that this old lady intended to benefit her daughters. Before the plaintiff can succeed he must dispose of this presumption. There is a difference between the case of a father and his child and that of a widowed mother and her child, and Jessel M.R. has so decided in at least one case. I, however, feel constrained to follow the decision of Johnston J., and so I hold that we must begin with the presumption of an advancement.

As regards the evidence surrounding the transaction, we have evidence that this lady had a small farm and this money in the bank, and that these three girls were in America, and that she was in correspondence with them. The evidence does not show when she was in correspondence with them. Now, it seems to me that the form of the deposit receipt itself suggests that she did not intend to part with dominion over these moneys. It was desirable that control should be in someone and it is reasonable to infer that she desired to keep control herself. The daughters knew nothing about it, but I do not know if it is reasonable to consider this fact. The previous deposit receipt was in the same form, and apparently this old lady withdrew the money and deposited it again in these names. I do not think it is unreasonable to infer that she did intend

to retain control. If she had intended to benefit the defendants, she could have used the ordinary form of deposit receipt, requiring each joint depositor to be present to make any withdrawal, or she could have divided the money up. I am again doubtful of the weight of this evidence, but, adding all the evidence together, I think the reasonable inference is that she intended to benefit them by allowing them to have whatever was left when she died.

Accordingly the gift in my opinion was revocable and testamentary in character. It falls therefore within the cases of Gason v. Rich(1) and Owens v. Greene and Freeleyv. Greene(2). It cannot be upheld. In my opinion the decision of the Circuit Court Judge should be reversed and the plaintiff should have the declaration asked for.

O'Byrne J.: —

The question in this case is the ownership of a sum of £225 standing in the Ulster Bank in the joint names of Mary Anne Lynch and her three daughters. It is alleged in the indorsement of claim that "on or about the 10th day of February, 1928, the said Mary Anne Lynch placed money belonging to her and amounting to the sum of £250 on deposit account...