Munster and Leinster Bank v Attorney General and Others

• Jurisdiction: Ireland
• Judgment Date: 29 November 1940
• Date: 29 November 1940
• Court: High Court

Munster and Leinster Bank v. Attorney-General and Others.

THE MUNSTER AND LEINSTER BANK, LIMITED

Plaintiffs

and

THE ATTORNEY-GENERAL, AGNES DOYLE, VERY REVEREND FR. O'GORMAN, MICHAEL C. O'CALLAGHAN and HENRY M. DARDIS

Defendants.

Will - Construction - Charitable gift - Bequest of leasehold property to a branch of the Catholic Young Men's Society - Validity - Money on deposit receipt - Gift of portion - Whether a valid donatio mortis causa.

A testator by his will bequeathed certain leasehold premises to a branch of the Catholic Young Men's Society of Ireland. On a construction summons being brought by the executors for the determination of certain questions arising in the administration of the estate it was found by Black J.:— (a) That the Catholic Young Men's Society had a charitable object, namely the promotion of Catholic Action; (b) that the Society had also other objects, namely, the spiritual, intellectual, social and physical welfare of its members, and that these were non-charitable; (c) that the two classes of objects were not so linked together that it would be impossible for the Society to devote the bequest to advancing any of the non-charitable objects without also advancing the charitable objects.

Held, therefore, 1, that the gift to the Society was not a charitable legacy; 2, that it was not a valid gift to the individual members of the said branch of the Society, and was therefore void as infringing the rule against perpetuities.

In re Byrne; Shaw v. Attorney-General, [1935] I. R. 782, followed.

A gift of portion of a sum of money held on deposit receipt may be valid as a donatio mortis causa, the deposit receipt being merely indiciumof title, and this notwithstanding that the portion to be so given is unascertained at the time of the gift, provided the method of ascertaining it can be gathered from the evidence from which the deceased's intentions are to be inferred.

Construction Summons brought by the plaintiffs as executors of the will of Nicholas Doyle, who died on the 18th May, 1938, to have, inter alia, the following questions arising in the administration of the estate of the said deceased determined by the Court:—

1. Whether the sum of £80 on deposit receipt in the name of the said Nicholas Doyle, deceased, at the Munster and Leinster Bank, Limited, Skerries, in the County of Dublin, formed part of the personal estate of the said deceased at the time of his death.

2. If not, whether the said deposit receipt was effectively given as a donatio mortis causa or as a voluntary gift by the said Nicholas Doyle to the defendant, Agnes Doyle.

3. Whether the bequest, contained in the first codicil to the will of the said deceased, of the testator's house, Brookville, 20 Holmpatrick, Skerries, in the County of Dublin, to the Skerries branch of the Catholic Young Men's Society was a valid charitable bequest.

4. If not, was the said bequest a valid bequest to the individual members of the Skerries branch of the said Society at the date of the testator's death.

5. If not, who was entitled to the said bequest.

6. If necessary, an order for the administration of the estate of the deceased and the execution of the trusts of the will under the order of the Court.

An affidavit was sworn by Agnes Doyle, widow of the said Nicholas Doyle, deceased, the material paragraphs of which were as follows:—

"1. My late husband, the above-named Nicholas Doyle, deceased, had suffered from heart trouble for a number of years, but about nine or ten days before his death he became very ill, and had to go to bed, and from this illness he never recovered.

2. On the 17th May, 1938, the day before his death, I was with my husband in his bedroom and told him that there was no money in the house and I had no money with which to carry on and run the house. He then told me to go upstairs and get a deposit receipt. I knew he had three deposit receipts, one for £10 and one for £100, both in the Munster and Leinster Bank, and also one for £200, which I believed he intended to dispose of in charity. I took the receipt for £100 and brought it down to him. He took it and said: 'Will that be all right, won't that be enough?' or words to that effect. I said it would, and he then signed his name to the receipt, and handed it to me, and said to me: 'Go down to the Bank now, and get the money.' He did not then or at any time give any directions as to what I was to do with the money when I got it.

3. I accordingly took the receipt and went down to the Munster and Leinster Bank. I there saw Mr. Vincent O'Callaghan, who is the Accountant in charge of the branch at Skerries, and presented the deposit receipt, and asked for payment of the £100. Mr. O'Callaghan said he could not do that, that he would get into trouble with my husband if he gave me all that money. He said that on the occasion of a previous illness of the deceased when he cashed a deposit receipt for me (about £10 in value, I think) my husband on his recovery had been angry with him for paying the whole amount. He said, however, that he would let me have £20. He accordingly paid me the £20 and 15s. 5d. interest, and he himself made out a fresh deposit receipt for the £80 in deceased's name and handed it to me, and I have retained possession of this receipt since that time.

4. As the deceased was then in a very weak state I did not tell him what had happened, nor did he speak about the money again before he died, and he himself did not at any time say what I was to do with the £100 when I had got it. Having regard to the deceased's directions I did not think there would be any difficulty about my getting the £80 even after his death, and I knew that the £20 would be sufficient for my immediate needs.

5. Edward Doyle, a brother of the deceased, was present when the deceased indorsed the deposit receipt and handed it to me, and when I came back from the Bank I told him what happened.

I do not think that the deceased intended to make me a present there and then of the £100. I am satisfied that had he recovered he would have required me to account for it and hand him back the balance. But he never gave me such a large sum before, only my monthly allowance, and, on the occasion of his previous illness, the £10 mentioned above, and, although he said nothing to me about his dying, he was then very weak, and died the next day, and I think that it was his intention that I should have something to live on after his death, until his affairs were settled up."

Edward Doyle, brother of the deceased, gave corroborative evidence, on affidavit, with reference to the occasions mentioned in paragraph 5 of the affidavit of Agnes Doyle above.

The remaining facts of the case are sufficiently set out in the judgment of Black J.

Cur. adv. vult.

Black J. :—

The first question I am asked to answer is whether a deposit receipt for £80 forms part of the assets of the deceased, Nicholas Doyle, or whether the £80 enures as a voluntary gift to his widow, Agnes Doyle, being portion of the sum of a £100 covered by a deposit receipt which he handed to her on his death-bed. I shall not recapitulate the facts, which are on affidavit.

During a previous illness, deceased had given his wife a deposit receipt for £10, and when he got well he had complained to the Bank that it should not have paid her the whole £10 at once. From this I infer that the deceased was the kind of man who would not hand out to his wife at once more money than he thought was necessary to defray household expenses for a very short time, unless he was thinking of making a more serious provision for her than a mere allowance to pay outgoings from day to day, and that when, on what proved to be his death-bed, he handed her a deposit receipt for £100, he had in mind to make provision for a very protracted period. This may have been a period during which he contemplated his illness might last, and during which he might not be again in a fit state to be troubled about money matters, or it may have been a period following his anticipated death, during which his widow's necessities, pending the winding up of his affairs, would not in his view be adequately provided for by a less sum than £100.

His ailment was heart trouble. He had been confined to bed for some ten days. That indicates that it was severe, and in my opinion that class of affection would be more likely to make the deceased contemplate death than to make him expect a protracted period of sustained inability to sign a deposit receipt or to send a message to his bank. He must have felt much worse than on the previous occasion; for he not only gave his wife a sum ten times as large, but he asked her if that would be enough. If the requirement he anticipated had merely been provision for the daily expenses during his illness, I think, having regard to the

previous £10 incident, he would have assumed that £100 would be a great deal more than enough for the time being, and that if he did happen to remain ill so long that £100 was nearly spent, it would be time enough then to ask questions about the need for making further provision. On the whole, I am of opinion that he intended a donatio mortis causa.

Now, when a dying man hands over deposit receipts under circumstances establishing a donatio mortis causa,the gift is not the scraps of paper, but the money they represent. The scraps of paper are merely indicia of title. As Buckley J. said in In re Beaumont(1): "The delivery of the deposit receipt is the delivery of some effective means of obtaining the money itself." Here, the deposit receipt was for £100. £20 of that was reduced into possession by the wife. It was spent on household expenses. That £20 was, I think, a gift inter vivos, but perfected without the need of asking Equity to complete it, which, the transaction being a voluntary one, Equity would not do, if it had to be invoked. Hence, if there is a validdonatio mortis causa, it can only...