Die
Mercurii, 1° Decembris 1954
Parliamentary
Archives,
HL/PO/JU/4/3/1027
Viscount
Simonds
Lord
Morion
of
Henryton
Lord Reid
Lord
Tucker
Lord
Somervell
of
Harrow
HOUSE
OF LORDS
SHEPHARD AND ANOTHER
v.
CARTWRIGHT AND OTHERS
1st December, 1954.
Viscount
Simonds
MY LORDS,
This
appeal raises questions in regard to the application of the
equitable
doctrine of advancement which I had regarded as well
settled long ago.
The
following facts form the background of the case.
On the
20th July, 1949, one Philip Edward Shephard died leaving a
sub-
stantial estate subject to the claims to which I presently
refer. The Respon-
dents. Joseph Osmond Cartwright and Hedley
Spain Dunk and his son,
the Appellant, Richard David Shephard, are
the executors of his will which
was made on the 4th December,
1946. In addition to Richard, who was
born on the 2nd November,
1913, the deceased, as I will call him, had two
other children, an
elder son, the Respondent, Philip Edward Shephard,
and a daughter,
the Appellant, Winifred Maud Cartwright, who was born
on the 25th
October, 1906.
In the
year 1929 the deceased, who was then employed in an
insurance
brokerage business, engaged upon speculative building
ventures in associa-
tion with one Meyer, and for that purpose
promoted six private companies
and caused the following shares of
£1 each, for which he had subscribed in
cash, to be allotted
to and registered in the names of himself, his wife and
his three
children whom I have named:
The
His
Deceased Wife Philip
Winifred Richard
New Ideal
Homesteads
Limited 200 100 100 100
Kent &
Sussex Building
Co. Limited 100 100 100 450
Northend
Machinery &
Motor Services
Limited
125 125 125 125
Reliance
Electrical Co.
Limited 100 50
N.I.H.
Haulage Limited 100 150 100 150
Mastercraft
Homesteads
Limited 100
It has not
been disputed that these shares were at that time of the value
of
£1 each or thereabouts. An equal number of shares of each
company
was registered in the names of the deceased's associate,
Meyer, and members
of his family. Neither of the Appellants, of
whom Richard was then aged
16 and Winifred 23, had any knowledge
of this transaction. No evidence
was given of the issue of any
share certificates, but it seems reasonably
certain that none were
given to Richard or Winifred. Whether Philip had
any is unknown.
Strangely, he elected to give no evidence on this or any
other
matter.
At the
time of this transaction Richard and Winifred lived at home
under
their father's protection and, though it appears that
relations between them
and his wife, their stepmother, were
somewhat strained, there is evidence
that he recognised in full
his paternal obligations, while they regarded him
with more than
usual filial reverence.
2
I think it
well then to pause in this year 1929 and to ask what was the
result
in law or equity of the registration, in the names of his
children,
of shares for which he supplied the cash, and I pause in
order to examine
the law, because it appears to me that the only
two facts which are at this
stage relied on to rebut the
presumption of advancement, viz.: that the
children were ignorant
and that certificates were not given to them, are of
negligible
value.
My Lords,
I do not distinguish between the purchase of shares and
the
acquisition of shares upon allotment, and I think that the law
is clear that
on the one hand where a man purchases shares and
they are registered
in the name of a stranger there is a resulting
trust in favour of the pur-
chaser ; on the other hand, if they
are registered in the name of a child
or one to whom the purchaser
then stood in loco parentis, there is no such
resulting
trust but a presumption of advancement. Equally it is clear that
the
presumption may be rebutted but should not, as Lord Eldon said,
give
way to slight circumstances.
It must
then be asked by what evidence can the presumption be rebutted,
and
it would. I think, be very unfortunate if any doubt were cast (as I
think
it has been by certain passages in the judgments under
review) upon the
well settled law on this subject. It is. I think,
correctly stated in substan-
tially the same terms in every text
book that I have consulted and supported
by authority extending
over a long period of time. I will take, as an example,
a passage
from Snell's Equity, 22nd Edition, at p. 122, which is as follows:
" The
acts and declarations of the parties before or at the time of
"
the purchase, or so immediately after it as to constitute a part of
"
the transaction, are admissible in evidence either for or against
the
" party who did the act or made the declaration ;
subsequent acts and
" declarations are only admissible as
evidence against the party who
" did or made them, and not in
his favour."
I do not
think it necessary to review the numerous cases of high
authority
upon which this statement is founded. It is possible to
find in some earlier
judgments reference to " subsequent"
events without the qualifications con-
tained in the text-book
statement: it may even be possible to wonder in some
cases how in
the narration of facts certain events were admitted to
considera-
tion. But the burden of authority in favour of the
broad proposition as
stated in the passage I have cited is
overwhelming and should not be disturbed.
But,
though the applicable law is not in doubt, the application of it is
not
always easy. There must often be room for argument whether a
subsequent
act is part of the same transaction as the original
purchase or transfer, and
equally whether subsequent acts which it
is sought to adduce in evidence
ought to be regarded as admissions
by the party so acting, and whether, if
they are so admitted,
further facts should be admitted by way of qualification
of those
admissions.
Before,
however, I ask whether evidence of any subsequent events is in
this
case admissible either because they formed part of the original
trans-
action or because they were in the nature of admissions, I
must shortly
examine an argument which has been pressed upon this
appeal and appears
to have carried particular weight with Romer,
L.J. It is that an inference
about the intention of the deceased
at the time of the vesting of the relevant
shares in the
applicants can be drawn from his manner of dealing with
other
property which before or after the transaction in question
he had transferred
to one or other of his children. I cannot
regard such evidence as admissible
or, if admissible, as of any
value. If the argument only means that such
other transfers ought
to be regarded as " part of the same transaction ", then
it
fails because it is altogether too artificial so to regard them. If,
on the
other hand, the argument is intended to introduce a new
category of admis-
sible evidence, viz. acts which, though not
part of the same transaction, yet
indicate a course of dealing, I
must reject it on the ground that it cannot be
supported by reason
or authority. This form of evidence was expressly
rejected by Lord
Eldon in Murless v. Franklin, 1 Sw. 13 at p. 19, and I
am
not aware of any attempt having been again made to introduce
it.
3
The first
question, then, is whether any subsequent events are admissible
as
part of the original transaction to prove that the deceased had not
in
1929 the intention of advancement which the law presumes. My
Lords, for
nearly five years nothing happened which could by any
means be regarded
as throwing light upon his original intention,
but an event did happen which
would amply explain a change in that
intention. For within a short time
of their promotion the
businesses of the six companies were prosperous
beyond all
expectation. In the year 1931 their combined profits were £57,780,
in
1932 £128,525 and in 1933 £344,671. It is not surprising
that in the light
of this great success the deceased and his
co-adventurer, Meyer, should form
a public company to acquire all
the shares of all the six companies. This
they did. The Ideal
Building and Land Development Company was formed
to acquire the
shares, and, the deceased having in the meantime procured
the
execution by the Appellants of two Powers of Attorney dated the
2nd
May, 1934, authorising him to deal with their shares and any
dividends
thereon in the most general terms, an agreement was
entered into between
the new company and the several shareholders
of the six private companies
for the sale of all the shares for
£700,000, of which £300,000 was to be
satisfied in
cash and £400,000 in shares of the new company. The
Appellants
signed this agreement and under it became entitled.
Richard to
£45.937 10s. od. in cash and £40,000 in
shares, and Winifred to
£26.737 10s. 0d. in cash and £40,000
in shares. It is an undisputed and
from one point of view a
material fact that the Appellants signed these
documents at the
request of the deceased without understanding what they
were
doing. The deceased received the cash consideration for the
Appellants'
shares in the old companies and he at various times
sold, and received the
proceeds of sale of, their shares in the
new company. He subsequently placed
to the credit of the
Appellants respectively in separate deposit accounts with
Barclays
Bank Ltd. (after allowing for two payments which can be
identified)
the exact amount of the cash consideration for the old
shares and round
sums in each case equivalent with trifling
differences to the proceeds of sale
of the new shares. At some
date, which is uncertain, as the document is
undated, but fell
between the 16th May and the 5th September, 1934, the
deceased
obtained the Appellants' signatures to documents authorising him
to
withdraw moneys from their deposit accounts. Of the contents of
these
documents also the Appellants were ignorant. But the
deceased, without
their knowledge, acted upon them and drew on the
accounts, which were
by the end of the year 1936 exhausted. It is
not disputed that some part
of the sums so withdrawn was paid to
or otherwise dealt with for the benefit
of the Appellants
respectively, but a large part remains unaccounted for.
Hence this
suit, in which in effect the Appellants claim an account of
the
proceeds of their original shares and other appropriate
relief.
I have
omitted to state one fact subsequent to the original
transaction
which, whether or not it is to be regarded as part of
it and admissible in
evidence under that head, is clearly
admissible as an admission by the deceased
against interest.
Shortly before the completion of the agreement with the new
company
and no doubt as part of the arrangement, one of the old
companies,
New Ideal Homesteads Ltd., declared and paid a dividend
of £25 12s. 0d.
per share. The deceased, acting presumably
under the Power of Attorney to
which I have referred, received the
dividend attributable to the Appellants'
shares and, though
retaining it for his own use, instructed the Respondent
Dunk, an
accountant who acted for the deceased in the preparation of
his
income tax returns, that the dividend was the income of the
Appellants. It
was so treated by Dunk, whose integrity has not
been challenged. Similar
information and instructions were given
by the deceased to Dunk in regard
to the sums placed to the
deposit account of the Appellants with Barclays
Bank Ltd. and to
the untaxed interest payable in respect of those sums, and
were
acted on by him.
I turn
then again to ask how these facts which I have briefly narrated
can
be adduced in evidence by the deceased or his estate. And I think
it
convenient at this stage to refer to a matter in which, with
great respect, I
think the learned Master of the Rolls fell into
an error, and moreover into an
4
error
which largely influenced him in the conclusion to which he came.
For
he treated the Appellants' claim merely as a claim against a
dead man's
estate, and therefore (as he says and reiterates) as a
claim in which a heavy
onus lay on the claimants. But that is not,
in my opinion, the way in which
the claim should be regarded. It
starts with the fact that in 1929 certain
shares were placed by
their father in the names of the Appellants, and, that
fact being
admitted or proved, a presumption at once arises which it is for
the
Respondents to rebut. They as executors are in no stronger
position than
their testator would be in if he were alive.
My Lords,
at the outset of this Opinion I said that there must often be
room
for argument whether subsequent events can be regarded as
forming
part of the original transaction so as to be admissible
evidence of intention,
and in this case it has certainly been
vigorously argued that they can. But,
though I know of no
universal criterion by which a link can for this purpose
be
established between one event and another, here I see insuperable
difficulty
in finding any link at all. The time factor alone of
nearly five years is almost
decisive, but, apart from that, the
events of 1934 and 1935, whether taken
singly or in their sum.
appear to me to be wholly independent of the original
transaction.
It is in fact fair to say that, so far from flowing naturally
and
inevitably from it. they probably never would have happened but
for
the phenomenal success of the enterprise. Nor can I give any
weight to
the argument much pressed upon us that the deceased was
an honourable
man and therefore could not have acted as he did, if
he had in 1929 intended
to give the shares outright to his
children. I assume that he was an honour-
able man as well in the
directions in regard to income tax that he gave
to Mr. Dunk as
otherwise, but I think that he may well have deemed it
consistent
with honourable conduct and with paternal benevolence to take
back
part of what he had given when the magnitude of the gift so far
sur-
passed his expectation.
If, then,
these events cannot be admitted in evidence as part of the
original
transaction, can they be admitted to rebut the
presumption on the ground
that they are admissions by the
Appellants against interest? I conceive it
possible, and this view
is supported by authority, that there might be such
a course of
conduct by a child after a presumed advancement as to constitute
an
admission by him of his parent's original intention, though such
evidence
should be regarded jealously. But it appears to me to be
an indispen-
sable condition of such conduct being admissible that
it should be per-
formed with knowledge of the material facts. In
the present case the
undisputed fact that the Appellants under
their father's guidance did what
they were told without enquiry or
knowledge precludes the admission in
evidence of their conduct
and, if it were admitted, would deprive it of all
probative value.
It is otherwise, however, with the conduct of the deceased.
I have
already made it clear that the Respondents have failed to
discharge
the burden which rests on them of rebutting the
presumption of advance-
ment. The Appellants, therefore, in my
opinion, need no reinforcement
from subsequent events. But, since
inevitably in a complex case like this,
either upon the footing of
being examined de bene esse or because they
have been
admitted for some other purpose than the proof of intention, all
the
facts relevant or irrelevant have been reviewed, I do not hesitate to
say
that the only conclusion which I can form about the deceased's
original
intention is that he meant the provision he then made for
his children to
be for their permanent advancement. He may well
have changed his mind
at a later date, but it was too late. He may
have thought that,
having made an absolute gift, he could yet
revoke it. This is something that
no one will ever know. The
presumption which the law makes is not to be
thus rebutted. If it
were my duty to speculate upon these matters, my final
question
would be why the deceased should have put these several parcels
of
shares in six different companies into the names of his wife and
three
children unless he meant to make provision for them, and
since learned
Counsel have not been able to suggest any, much less
any plausible, reason
why he should have done so, I shall conclude
that the intention which the law
5
imputes to
him was in fact his intention. The reasoning which made so strong
an
appeal to Mellish, L.J., in Fowkes v. Pascoe, 10 Ch.
App. 343 has in
this case also particular weight.
In my
opinion, then, this appeal succeeds on the main question that
has
been argued before us. But two further points were urged upon
which I
must say a few words. It was contended by Counsel for the
Respondents
that, as the Appellants did not know that the shares
had been registered in
their names, there could have been no gift
of the shares to them, since there
cannot be a gift without
acceptance by the donee, and the well known case of
Cochrane v.
Moore, 25 Q.B.D., 57 was cited to support this contention.
My
Lords, I have some difficulty in understanding the application
of Cochrane v.
Moore to the present case. There the law was
expounded with a wealth of
learning how a gift of a chattel can be
lawfully made. Here the legal estate
in the shares was vested in
the Appellants in the only way in which it could
be vested, and
the only question is whether the beneficial interest attended
the
legal interest by virtue of the equitable doctrine of
advancement or whether
there was a resulting trust. That is the
question which I have tried to answer.
Lastly,
the Respondents raised the plea of the Limitation Act, 1939. To
this,
I think, a complete and satisfactory answer is given in the
judgment
of Denning. L.J., which upon this part of the case I
respectfully adopt.
It was conceded by the Respondent, that the
deceased received the con-
sideration in cash and shares for the
Appellants' shares, as trustee for them,
and it is clear that he
could not discharge himself of that trust by purporting
to act in
some other capacity in a manner and in circumstances unknown to
them.
I move
accordingly that this appeal be allowed and that the following
order
be made: —
(I) That
the Order of the Court of Appeal of the 1st July. 1953, be set
aside
:
(II) That
Harman, J.s. Order of the 19th February, 1953, be varied as
follows:
-
(i) By
declaring (in lieu of the declaration on Inquiry No. 5 ordered
by
Order dated 12th January. 1953) that all the shares in the
companies
there mentioned, registered in the respective names of
the Appellants,
were advancements to them respectively, so as to
constitute each the
sole beneficial owner thereof, and that their
respective claims against
the estate of the Testator based upon
such beneficial ownership are not
barred by laches or
acquiescence, or by the Limitation Acts, 1623 or
1939.
(ii) By
striking out the declarations on Inquiries Nos. 7 and 10
(ordered
by the said Order dated 12th January, 1953).
(iii) By
declaring that the Accounts and Inquiries Nos. 6, 7. 9, 10
and II
set out in the Order of Harman, J. dated 12th January, 1953,
should
be taken and made upon the basis of declaration II (i) above.
The
Respondents Joseph Osmond Cartwright and Hedley Spain Dunk
will
retain their costs as between Solicitor and client out of the
estate of the
deceased in due course of administration. The
Appellants will be paid
their costs of this appeal and in the
Court of Appeal out of the estate
as between party and party. The
Respondent, Philip Edward Shephard will
bear his own costs of this
appeal and in the Court of Appeal.
Lord
Morton of Henryton
MY LORDS,
I entirely
agree with the Opinion which has just been delivered by my
noble
and learned friend, Viscount Simonds, but as we are differing
from
the Court of Appeal and from Harman, J. I shall add a few
words on
6
the
question whether it is possible to find a " half-way house "
between the
view which my noble and learned friend has just
expressed and the view
that each of the Appellants was a bare
trustee for the deceased.
I shall
first take the case of the Appellant Richard David Shephard. In
1929,
when Richard became the registered owner of shares in private
com-
panies promoted by his father and Meyer, he must have taken
those shares
either as beneficial owner or as a trustee. I see no
third possibility which
would be recognised by English law. If,
however, the presumption of an
advancement is rebutted, the
evidence may establish either (a) that he took
them as a
bare trustee for his father, or (b) that he took them upon
certain
other defined trusts.
My Lords.
I find the latter alternative quite impossible in the present
case,
even if all the events set out in the Judgment of the Master of
the
Rolls are admitted in evidence. I cannot believe that
Richard's father
would select him. at the age of 16. to hold
several separate blocks of shares
as a trustee with duties to
discharge and trusts to carry out. Further, it is
clear that no
trusts were communicated to Richard when the shares were
taken up
in his name or at any later date. Finally, even if these
two
obstacles could be surmounted. I should find it hard to
formulate any trusts
which explained the subsequent acts and words
of the father in regard to
these shares.
For these
reasons. I think there is no " half-way house", in
Richard's
case, and I think that these reasons apply equally to
his sister, for although
she was 23 years old in 1929 she would
seem to have been quite inexperienced
in business matters.
I have
made these observations because the Master of the Rolls and
Romer.
L.J. found a " half-way house ", and I feel that, out of
respect for
them. I ought to explain briefly why I cannot enter it
with them. I add
that the case of Devoy v. Devoy, 3
Smale & Gilffard p. 403. on which they
relied, does not, in my
opinion, afford an instance of a " half-way house ".
To
quote the language of the report—
"The
bill stated that on the 14th July, 1848, the Plaintiff transferred
"
the sum of £200 Three and a Quarter per Cent. Annuities
(since
" converted into New Three per Cent. Annuities) into
the joint names
" of himself, his wife, and his daughter
Amelia Jane Devoy (in which
" names the stock was now
standing), but the transfer note was signed
" by the
Plaintiff alone. At the date of effecting such transfer the
"
Plaintiff, who was a fellowship porter, was in easy circumstances,
and
" his motive for so doing was that he might not be
induced to have
" recourse to such stock except his
necessities should compel him so to
" do, but the stock
should remain as a provision for the future.
" The
Plaintiff, as the bill alleged, never intended to give the said
"
stock to his wife or daughter, or to both jointly, or to the
survivor
" of them, or to the survivor of the three persons
into whose names
" the transfer was made, or any part
thereof, or to declare any trust
" of the same or of any part
thereof, or to place it beyond his own control.
" and did not
know that the effect of transferring such stock into the
"
said names would be to prevent him from availing himself of the
said
" stock in case of need, and had he known that such
would have been
" the effect he would not have made such
transfer. No trust was ever
" declared of the said stock ;
but the Plaintiff regularly received the
" dividends thereof,
and applied the same to his own use."
The
Plaintiff, having sustained injuries which prevented him from
following
his calling as a fellowship porter, applied to the bank
to transfer the stock
into his name or to permit him to sell the
same, but met with a refusal.
Thus, my
Lords, the allegation was, in effect, that the Plaintiff
always
intended to retain the beneficial interest in the stock,
but to remove, to some
extent, the temptation to have recourse to
it unless he should be forced to
7
do so by
necessity. The Vice-Chancellor's decision was in the
following
terms: —
"
Declare that the infant defendant is a trustee for the father, and
"
the order will be in the form prescribed by the Trustee Relief
"
(Extension) Act." "
The wife
was also a Defendant, but it seems likely that her name was
omitted
from the decree because she was willing to join in a
transfer.
Whatever the explanation may be for the omission of her
name, it would
seem clear that the learned Vice-Chancellor
accepted the Plaintiff's conten-
tion that he was the sole
beneficial owner. In his judgment, however, the
following sentence
occurs: —
"
Here the evidence shows that the father intended to confer only a
"
qualified interest and not to make an absolute gift."
My Lords,
I confess I am unable to understand what was the " qualified
"
interest" which the learned Vice-Chancellor had in mind. It may
be that
he was referring only to the legal estate, for neither the
evidence nor the
decision contains the slightest indication that
any other interest was intended
to be conferred either on the wife
or on the daughter. I regard the case of
Devov v. Devoy
as being simply a case in which the presumption of advance-
ment
was rebutted and the Court was satisfied that the persons in
whose
names the investment stood were bare trustees for the
Plaintiff.
I agree
with the order proposed.
Lord Reid
MY LORDS,
I agree and, even if all the
evidence in this case is taken into consideration,
I am of opinion
that the Appellants must still succeed. I take first the
other
transactions which are said to show a course of conduct. The
argu-
ment for the Respondents is that in these cases the father
put the titles
to various properties in his children's names
intending to retain for himself
the beneficial interest and
therefore it can be more readily established
that he intended to
retain the beneficial interest in the shares in question
in this
case. But the basis of that argument is that he in fact retained
the
beneficial interest in the other properties and that has not been
proved.
The first instance is a business of insurance broking, R.
D. and P. E.
Shephard, which the father started about 1916, the
only registered partners
being the two Appellants, who were then
only ten and three years old.
No doubt he had a reason for using
their names, because the terms of his
employment with an insurance
company forbade him to carry on such a
business; but for a time at
least he caused the profits of this business
to be returned for
income tax purposes as income of the Appellants. The
circumstances
of this case are so special that I could draw no inference
from
them.
Then the father acquired two
businesses, one of which was carried on
in the name of the
Appellant Mrs. Cartwright and the other in the name
of the other
Appellant. Neither Appellant was told of this, but, again,
the
results of these businesses were shown in the children's income
tax
returns by the father's direction. Here there were losses, and
those losses
were ultimately paid out of the price which the
father received for the
shares in the names of the children with
which this case is concerned.
The father also took the titles of
a number of houses in the children's
names. The children were told
of this at later dates and it is admitted that
these were
gifts, but it was argued that where in contrast the children
were
not told no gift was intended. I am not sure whether it was
main-
tained that the father intended to retain the beneficial
interest in each case
until he told the children, but there is
nothing to support that view.
8
The true
position of the three businesses to which I referred is far
from
clear, and even if it were clearer there are obvious
differences between
fully paid shares registered in the children's
names and businesses carried
on by the father under their names.
This seems to me to be a very good
example of the wisdom of the
rule which excludes such evidence.
I turn to
the shares with which this case is concerned. In 1929 the
father
and one Meyer, an undischarged bankrupt, promoted six private
com-
panies to be used in the business of speculative building. In
aggregate
the father registered 725 £1 shares in his own
name, 100 in the name of
his wife, 425 in the name of his daughter
Winifred <now Mrs. Cartwright),
875 in the name of the
Appellant Richard, and 375 in the name of another
son Philip,
making 2,500 in all. We do not know whether the wife or
Philip was
told about this, but the Appellants were not told. There is
no
contemporary evidence of any kind to show what the father's
intention
was with regard to the shares registered in the
Appellants' names, and no
dividend was declared until 1934. A
substantial dividend was then declared,
and the father instructed
his accountant to show the dividend on the
shares in the
Appellants' names as belonging to them and as their income.
But
they did not receive the income. There is no evidence to prove or
suggest
that the father was at any stage causing false returns to
be made or trying
to defraud the Revenue.
The
Respondents rely on the father's actions in 1934 and subsequent
years
in selling the shares and disposing of the proceeds. It appears
that
he was in the habit of getting his children to sign numerous
documents
without telling them anything about the nature of the
documents, and the
Appellants were quite willing to do this. The
companies were controlled
by the father and Meyer and in 1934 they
agreed to sell all the shares
for a very large sum : the
consideration received for the 2.500 shares in
the names of the
father and his family was £145,000 in cash and a large
number
of shares in the purchasing company. The agreement to sell bears
the
Appellants' signatures, but they were never told what they were
signing
and did not even know that they were shareholders. The
father first put
the whole price into the bank in his own name,
but after a short time
opened deposit accounts in (he names of
each of the Appellants and paid
into each account the share of the
£145,000 appropriate to the number of
shares registered in
each of the Appellants' names less comparatively small
sums which
appear at least in one case to have been used to pay losses
in
businesses carried on in the children's names. The father also
paid
into these accounts sums received when shares in the new
company allotted
to the Appellants were sold by him. He obtained
the Appellants' signatures
to documents authorising him to draw on
these accounts—again without
telling them what these
documents were. Ultimately he used most of
the money in these
accounts for his own purposes: but he put about £40,000
in
the name of each of the Appellants and admittedly these sums
belonged
to the Appellants.
Such in
outline are the facts on which the Respondents rely. The
Appellants
agree that their father was an honourable man, and the
Respondents
say that no honourable man would have done this if he had
originally
intended the children to be the beneficial owners of the shares
which
he registered in their names in 1929. At first sight that seems
a
formidable argument, but on examination I do not find it at all
convincing.
The father
was not a lawyer. He may quite well have thought that as he
had
never told the Appellants anything, he was entitled -morally or
perhaps
legally—to take back what he had given: and he may
have thought that
£40,000 for each of them was a very good
substitute for what he had first given
-shares of a nominal value
of a few hundred pounds. He may have intended
to make gifts
reserving a power to revoke them, or he may have thought
that it
was unnecessary to trouble about the legal position because
he
believed that his children would sign anything he put before
them and he
could thus make any changes which he thought
desirable. But I find it
very difficult to suppose that he never
intended the children to be the owners
9
of the
shares. I cannot imagine any reason why he should put the shares
in
his children's names unless he intended at least that if he died
before
making any alteration the shares should belong to them and
not to his
estate. Certainly there is nothing in the evidence
which is in the least
inconsistent with such an intention.
It is for
the Respondents to displace the presumption that in registering
the
shares in the Appellants' names he intended to make them
beneficial
owners. Unless his statement to the Revenue that the
dividends belonged
to them and were part of their incomes was
fraudulent he must have intended
that they should have some
beneficial rights, and in my judgment the
most that could be
inferred in the Respondents' favour is that he thought
he was
morally entitled to do what he did. Whether he thought he
had
reserved a power to take back the shares, or relied on his
children being
willing to sign without explanation any documents
necessary to enable him
to deal with the shares or their proceeds
in any way he thought fair is a
question which on the evidence
cannot be answered. So it appears to me
that on the facts of this
case the Respondents are not at all prejudiced
by the operation of
rules of law which exclude much of the evidence.
Viscount
Simonds
MY LORDS,
My noble
and learned friend, Lord Tucker, who is unable to be present,
asks
me to say that he agrees with the Opinion I have delivered, for
the
reasons and conclusions I have come to.
Lord
Somervell of Harrow
MY LORDS,
I agree.
(30568)
Wt. 8070-68 J3 12/54 D.L./PA/19
