Porter v Walsh

• Jurisdiction: Ireland
• Judgment Date: 06 February 1895
• Date: 06 February 1895
• Court: Chancery Division (Ireland)

Porter

and

Walsh.

V.-C.

(1894. No. 696.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Donatio mortis causa — Deposit receipt.

A deposit receipt unendorsed is a good subject-matter of a donatio mortis causa.

The principle of Duffield v. Elwes (1 Bli. N. S. 497) applied.

Action to have it declared that two deposit receipts, dated 11th October, 1893, and 6th January, 1894, for £6000 and £450 respectively, deposited with the Bank of Ireland by Eliza Ryan, otherwise Lea, deceased, and all interest accrued thereon were effectively given by the said Eliza Ryan, deceased, to the plaintiff as a donatio mortis causa and that the cash and interest represented by same did not form part of the personal estate of the said deceased at the time of her death, and further that the defendants, the executors of the deceased, might be ordered to endorse the said deposit receipts to the plaintiffs, and if necessary that the personal estate of the said Eliza Ryan might be administered by the Court.

The deposit receipts had been given to the plaintiff by the deceased in the illness of which she died a few days afterwards. The deposit receipts were not endorsed. The deceased made a will, dated 13th September, 1877, of which probate had been granted to the defendants. In her last illness deceased gave instructions for a new will, which was drafted, but not executed by the deceased, under which the plaintiff was given all the property of deceased save £1000 intended to be given to charities.

The defendants traversed the delivery of the deposit receipts and alleged that the deceased was, as the effects of excessive drinking, incapable of making a valid donatio mortis causa, and pleaded that the deposit receipts could not by transfer unendorsed become the subject of a donatio mortis causa. By a counterclaim the defendants asserted that the moneys deposited were assets of the deceased and that they were entitled to possession of the receipts, and claimed damages for their detention.

The Right Hon. J. Atkinson, Q.C., Ronan, Q.C., and Jefferson, for the plaintiff:—

In no case has it been suggested that want of endorsement makes a donatio mortis causa bad: Daffin v. Daffin (1). In Duffield v. Elwes (2) a mortgage was held a good subject of a donatio mortis causa. In Amiss v. Witt (3) a deposit note was held to pass by a donatio mortis causa.

The Attorney-General (The Mac Dermot, Q.C.), Sullivan, Q.C., Bushe, Q.C., and Healy, for the defendants:—

We admit that a deposit receipt if endorsed may be the subject of a donatio mortis causa, but none of the authorities deal with the question of delivery of an unendorsed deposit receipt. In Amiss v. Witt (3) the report is silent as to whether the receipt was endorsed. Thompson v. Heffernan (4) decided that it is essential to the validity of a donatio mortis causa that the money or subject of the gift should be actually handed over. In all the cases where the property was held to pass, nothing remained to be done by the donor to entitle the donee to payment. One of the conditions upon which these deposit receipts were issued was that they should be endorsed, and both the...