McEvoy v Belfast Banking Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Warrington of Clyffe,Lord Thankerton |
| Judgment Date | 28 June 1934 |
| Judgment citation (vLex) | [1934] UKHL J0628-2 |
| Date | 28 June 1934 |
| Court | House of Lords |
[1934] UKHL J0628-2
House of Lords
Lord Atkin.
Lord Warrington of Clyffe.
Lord Thankerton.
Lord Macmillan.
After hearing Counsel, as well on Monday the 30th day of April last, as on Tuesday the 1st, Thursday the 3d, Friday the 4th, Monday the 7th, Tuesday the 8th and Thursday the 10th, days of May last, upon the Petition and Appeal of Joseph Dominick Laurence McEvoy, of Merchant's Quay, Newry, in the County of Down, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal in Northern Ireland, of the 24th of April 1933, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Belfast Banking Company, Limited, lodged in answer to the said Appeal: and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal in Northern Ireland, of the 24th day of April 1933, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Appeal in this case arises on questions arising out of the remarkable transactions affecting a deposit receipt issued by the Respondent bank. The facts are fully stated in the judgments of the Courts of Northern Ireland, and I only restate so much of them as appears necessary for my opinion. In 1921 John McEvoy, a widower, aged over 60, owned premises in Newry, where he carried on successfully the business of a publican, a grocer and an undertaker. He had an only son, the Appellant, Joseph, then a boy of 15. He was a customer of the bank, and for some years had a deposit account with the bank for which he held from time to time the appropriate deposit receipt. In July, 1921, he held a deposit receipt for £10,000. In that month he found himself to be mortally ill. On 19th July he summoned the bank manager at Newry, Mr. Coleman, to his house, where there were also present his brother-in-law and Mr. Adamson. He discussed his affairs and announced that he was proposing to leave everything to his son tied up until his son was 25 and that Miss Kinney, his sister-in-law, would manage the business. The question then arose as to death duties. He wished to avoid paying duty on the £10,000 deposit receipt and asked whether if there could be two names would it meet the case. Mr. Coleman was not prepared to advise him. He then gave directions that the deposit receipt should be put in the names of himself and his son, payable to either or the survivor; and it was arranged that the existing deposit receipt should be sent over to the bank the next day for that purpose. Accordingly the next day the brother-in-law brought the deposit receipt endorsed by John McEvoy. The accrued interest was paid partly in cash and partly by a transfer to current account, and in respect of the principal a new deposit receipt was issued, the form of which is apparently usual in Northern Ireland banking and is as follows:—
"Belfast Banking Co.,
Newry,
20th July, 1921.
£10,000.
Received from John McEvoy, Esq., and Mr. Joseph D. McEvoy (a minor), Newry, the sum of ten thousand pounds sterling for credit in deposit account, not transferable.
For the Belfast Banking Co., Ltd.,
W. H. Coleman (Manager).
Payable to either or the survivor.
This receipt must be produced when payment of either principal or interest is desired."
There are terms of the notice and interest endorsed on the back, which for present purposes are irrelevant.
On the same date the Bank opened a separate deposit account in their books in the names of "John McEvoy and Jos. D. McEvoy (a minor)".
On 10th August, 1921, John McEvoy made his will. He appointed four executors and trustees, and after giving certain legacies disposed of the residue as follows:—
"All the rest of my property is to be held in trust for my son, Joseph D. L. McEvoy, until he attains the age of twenty-five years, and on his attaining said age for him absolutely, and pending his attaining said age I authorise my said business to be carried on by my sister-in-law, Alice Kinney, on such terms as my executors in their absolute discretion may arrange."
In case his son died under the age of twenty-five, he made further dispositions.
On 13th September, 1921, he deposited with the bank a further £2,000, taking a deposit receipt in his own name, the amount being entered by the bank in the deposit account kept from 1907 in the name of John McEvoy.
On 20th September, 1921, John McEvoy died. The solicitor for the executors, Mr. Gartlan, very properly insisted that the moneys on deposit should be disclosed in the Schedule of Assets to be sworn by the executors. The executors refused, and, as Mr. Gartlan persisted, they employed another firm of solicitors, and omitted from the Schedule any reference to the capital sums, though there appears under "Cash at Bankers on Deposit and interest thereon" £66 2s. 3d. On 16th December, 1921, probate was granted to the four executors and noted by the bank on 20th December, recording "Value £2,458 7s. 9d." On 25th January, 1922, the four executors endorsed both the Deposit receipts; and in respect of the £10,000 receipt directed £170, the accrued interest, to be transferred to their current account; and as to the principal sum of £10,000 opened a Deposit account and obtained a new deposit receipt in their own names.
The Deposit receipt of 20th July, which, it will be remembered, was payable to John McEvoy or Joseph McEvoy or the survivor, was marked back and front by the bank "Paid 25th January, 1922," "Redeposited £10,000". According to the son, he saw Coleman twice in the year 1922 and asked him why the deposit receipt was changed into the names of the trustees and received on the first occasion the answer that it would save compound interest if so changed, and on the second occasion that it was changed under the will and belonged to trustees till he was twenty-five. Mr. Coleman denied both conversations. What the learned judge's finding was on this conflict is not clear, but he finds that the Plaintiff was aware, if not before his father's death, at any rate very soon after, that his name was on the deposit receipt, that the change was made for a purpose connected with avoiding death duties, and that the executors had had the sum transferred to their names. After his father's death the son returned to school, but left in 1923, and thereafter took a part in the business, which became more prominent as time went on. It has to be remembered that under the terms of the will the business was being carried on by the executors until the son attained the age of 25, which he did on 14th November, 1930. He came of age on 14th November, 1926. Until Easter, 1925, the business was being managed by the testator's sister, Miss Kinney. She left at that time and was succeeded by one Murden, who managed until May, 1927. From February, 1928, to July, 1929 the business was managed by one McParland.
In the interval the son appears to have been the only manager, and he assumed control on McParland's departure. He appears during most of the time to have kept the books and it would appear that as the prospective owner of the business he was allowed by the executors considerable latitude. Whatever the cause may be the business soon ceased to prosper. When Miss Kinney left there was an overdraft of over £2,700 which by November, 1926, had grown to £4,000. In May, 1925, the executors had purchased a property known as Rooney's Terrace in Newry and drew a sum of £2,000 from the deposit account, lodging the existing deposit receipt, and taking a new one for the reduced sum. This transaction took place with the knowledge of the son, not then of age, and with his approval. It is obvious that after 1926 the bank were dissatisfied with the overdraft and were pressing the executors to reduce it. In January, 1927, they drew £1,000 from the deposit account, in October, 1927, £3,000, in October, 1928, another £3,000 and in July, 1929, the balance of £1,000. On that date the whole of the £10,000 had been spent, £8,000 of it in repaying to the bank liabilities which had been incurred to the bank by the executors in carrying on the business. It is plain that the son was aware of these drawings from the deposit account and the purpose for which they were required, and took a part in procuring the necessary signatures from the executors and lodging them with the bank. In 1930 the son, through his solicitors, claimed from the bank the sum of £10,000 under the original deposit receipt, to which the answer was that he had known and approved throughout the manner in which the money had been dealt with. In April, 1931, the writ in the action was issued. The Defence in substance raises two issues; (1) That the Plaintiff was never entitled to the £10,000; (2) that if he was, the bank had paid the money at his request and at his direction.
As to the first point, all the judges in Northern Ireland have decided against the bank. Megaw, J., was of opinion that the ordinary presumption of advancement would be negatived by the circumstances of the opening of the deposit...
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