Rose v Greer and Sun Life Assurance Company of Canada

• Jurisdiction: Ireland
• Judgment Date: 01 January 1945
• Date: 01 January 1945
• Court: High Court

Rose v. Greer.

OLIVE ROSE

Plaintiff

and

FRANCES GREER and the SUN LIFE ASSURANCE COMPANY OF CANADA

Defendants.

Fraudulent conveyance - Assignment of policy of assurance - Consideration - Consideration stated to be a sum "now paid" - No money actually paid at date of assignment, but advances made to assignor on previous occasions - Policy assigned - Suspicious circumstances surrounding the assignment, but no evidence of any benefit retained by assignor - Insolvency of assignor - Test to be applied on question whether transaction fraudulent against creditors - 10 Car. I, Sess. II, cap. 3 (Ir.), s. 10.

Witness Action.

The plaintiff, Olive Rose, of 17 Alma Road, Monkstown, in the County of Dublin, brought a plenary summons against the defendant, Frances Greer of 1 Beaumont Avenue, Churchtown, in the County of Dublin, and the defendant, the Sun Life Assurance Company of Canada, of 24 Suffolk Street in the City of Dublin. The indorsement of claim was as follows:—

"The plaintiff is administratrix of Waldron Rose, deceased, who died on or about the 1st day of July, 1942, at Loughlinstown Hospital, in the County of Dublin.

The plaintiff claims a declaration:—

(1) That as assignment of a certain insurance policy, No. 950276, by which the Sun Life Assurance Company of Canada insured the life of the said Waldron Rose, deceased, purported to be made between the said Waldron Rose and Frances Greer the first-named defendant, is fraudulent as against the creditors of the deceased, and was made in pursuance of an illegal contract, and was contrary to public policy, and was void in law. (2) An order setting aside said assignment. (3) An order restraining the Sun Life Assurance Company of Canada from paying the amount of said policy to any other person than the plaintiff. (4) A declaration that in the circumstances the amount of £1,000 due under said policy forms portion of the estate of the said deceased. (5) If necessary, administration of the estate of the said deceased through the Court.

The defendant, Frances Greer, is sued as the person claiming to be entitled to the benefit of the said assignment, and claiming to be a creditor of the deceased, and to be entitled to the amount payable under said policy.

The defendant, the Sun Life Assurance Company of Canada, is sued as claiming to be a creditor of the deceased, and as the above-named insurers."

The facts are summarised in the headnote and are sufficiently stated, for the purposes of this report, in the judgment of Overend J.

In the year 1937 plaintiff had filed a petition against her husband, W. R. for restitution of conjugal rights, and at the same time she had sued the defendant for damages for enticement. The two proceedings were throughout treated as one, and the costs of defending them were paid by W. R. The latter had no money of his own, but paid the costs with moneys, advanced to him by the defendant, which she borrowed from his Bank. The defendant was given the necessary accommodation at the Bank on lodging securities for an overdraft, and in the months of May, June and July, 1938, she drew cheques in favour of W. R., for the sums of £100, £100 and £300, respectively, on an account which she opened at the Bank in her own name. It was arranged at the time that W. R. would pay to the Bank the interest on the money. He paid altogether a sum of £54 only, and by the year 1941 there was a substantial sum due for interest. W. R. was on the verge of insolvency, his only asset being an insurance policy which was already charged in favour of the Insurance Company. On the 7th May, 1941, W. R. assigned the policy to the defendant.

The assignment was an out and out assignment, the consideration being expressed to be the sum of £460, which was stated to be "now paid." No money was actually paid at that time, but the defendant testified that the assignment was made ill consideration of the moneys advanced for the costs of the proceedings. In the month of June, 1938, these proceedings had been settled by the parties, the enticement action being dismissed without costs and W. R. agreeing to execute a deed of covenant, by which, inter alia, he was to pay the plaintiff £300 per annum free of income tax. In September, 1938, W. R. made his will whereby, after reciting that his son and the plaintiff were amply provided for, he left the residue to the defendant as a token of esteem, and appointed her sole executrix, but he made no mention in his will of the debt of £500 due to the defendant.

A few months after the date of the assignment of the policy, W. R. applied to the Court for a reduction of the amount payable to the plaintiff, but in none of the affidavits in support of his application did he refer to the assignment, or to the Company's charge on the policy, and it was not until the 3rd March 1942, that notice of the assignment was given to the Company.

W. R. died on the 1st July, 1942, and the plaintiff subsequently obtained a grant of administration with the will annexed. The plaintiff, as widow and administratrix of W. R., and as a creditor of his estate, sought to have the assignment of the policy set aside on the ground, inter alia, that it was fraudulent and void within 10 Car. I, Sess. II, cap. 3, s. 10.

Held that the class of fraud which is contemplated and against which the statute is directed, is one in which the debtor attempts to defeat his creditors by bogus or colourable transactions under which the debtor retains a benefit to himself.

Held further that, on the facts and documents adduced in evidence, there was nothing to suggest any retention to the deceased of such benefit.

Accordingly the action was dismissed.

Overend J.:—

This is an action brought by the plaintiff as widow and administratrix of the late Waldron Rose, and also as a creditor of his estate, seeking to set aside an assignment, dated 7th May, 1941, whereby her late husband assigned to the defendant, Mrs. Greer, a policy for £1,000 on his life with the Sun Life of Canada, of which Company he had been Dublin Manager.

The prayer of the claim alleges two grounds of invalidity:—

1, that the assignment is fraudulent and void within 10 Car. I, Sess. III c. 3, s. 10; and

2, that the assignment is void as being for an immoral consideration and contrary to public policy.

Mr. J. McCarthy in opening, relied on the fact that there was "no consideration," since the £460 stated "to be now paid" was not in fact paid. But in this case I have no doubt the defendant could not bring herself within the saving of s. 14 of the Act, so that the absence of consideration would only be a factor to be taken into account in coming to a conclusion whether the deed was fraudulent within the meaning of the statute. Want of consideration is not pleaded, and the assignment was by deed under seal.

The statement of claim also alleges an agreement with the deceased that the policy should enure for her benefit and that she contributed to its upkeep. No evidence was given in support of this plea, for the plaintiff only suggested that in 1927 she agreed to accept a reduced housekeeping allowance to enable her husband to pay premiums on policies then existing. The policy in question was not effected till January, 1929, but if such an agreement could be proved, I fail to see that it could affect the case.

As to the plea that the assignment was contrary...