Matthews v Matthews [1913] HCA 49

Matthews v Matthews [1913] HCA 49 - HCA 1913 case summary — Zoe

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testator drew the money for one of these bonds and paid it into his own banking account, and shortly afterwards he bought three other bonds of £500 each, and received from the brokers a letter announcing the purchase, with a bought note. He handed these to his wife in an envelope, the three bonds themselves not having yet been delivered to him, and said to her: "I have bought these bonds for you." He died, the bonds being still undelivered, without having done anything further to complete the trans- action. The action was brought by the widow, who was one of the executors, to determine whether she was entitled to the three bonds and the proceeds of the bond sold, in addition to the bonds actually presented to her in 1905, her title to those being, as I have said, admitted. The plaintiff's co-executors, who were the defendants, sought to distinguish the case from Strong v. Bird (1). Neville J. said of that case (2): - "The decision is, as I understand it, to the following effect: that where a testator has expressed the intention of making a gift of personal estate belonging to him to one who upon his death becomes his execu- tor, the intention continuing unchanged, the executor is entitled to hold the property for his own benefit. The reasoning by which the conclusion is reached is of a double character - first, that the vesting of the property in the executor at the testator's death completes the imperfect gift made in the lifetime, and, secondly, that the intention of the testator to give the beneficial interest to the executor is sufficient to countervail the equity of beneficiaries under the will, the testator having vested the legal estate in the executor." Of the case before him the learned Judge said (2): - "The whole of the property in the personal estate in the eye of the law vesting in each executor, it seems to me immaterial whether the donee is the only executor or one of several ; nor do I think the rule is confined to cases of the release of a debt owing by the donee."

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A further question raised for the appellants must be considered, namely, whether the defendant assented to the alleged gift. Mr. Davis argued that, as a matter of law, such an assent was neces- sary, and that upon the facts it had not been established. There is no doubt that, as Mellish L.J. said in Hill vy. Wilson (1): - *It requires the assent of both minds to make a gift as it does to make a contract," and, as he there says, the assent of a person to that which is obviously for his benefit may be inferred on slighter evidence than would be required to show that he assented to something, eg., a contract, which may be to his prejudice. In the ease of a complete gift legally carried out by the mode of transfer applicable to the class of property to which the subject of the gift belongs, "the donor has put the thing given out of his own power, and has placed it in such a position that he can only get the thing back with the concurrence of the donee." See per Lindley L.J. in Standing v. Bowring (2). That learned Judge cited Siggers v. Evans (3), and added (2): - "The older authorities were carefully examined in this last case by Lord Campbell, and I take it now to be settled, that although a donee may dissent from and thereby render null a gift to him, yet that a gift to him of property, whether real or personal, by deed, vests the property in him subject to his dissent." Where a title is made complete by transfer, it seems that the donee can only devest the property from himself by actual repudiation when informed of the transfer. Lord Hals- bury L.C. said in the same case (4) : - "If the matter were to be discussed now for the first time, I think it might well be doubted whether the assent of the donee was not a preliminary to the actual passing of the property. You certainly cannot make a man accept as a gift that which he does not desire to possess. It vests only subject to repudiation." He cited Butler and Baker's Case (5), where it is said: - * The same law of a gift of goods and chattels, if the deed be delivered to the use of the donee, the goods and chattels are in the donee presently, before notice or agreement; but the donee may make refusal in pais, and by

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interval the defendant continued to live with his father at Yeo, visiting his wife twice a week, She lived at Colac, four miles away. About six months after the marriage, that is, about November 1910, another conversation took place in which the defendant expressed a desire for a house of his own, and after discussion it was agreed that the defendant should make an arrangement with his father-in-law, Mr. Caldwell, whose pro- perty was to be let; and the testator visited that property with the defendant and promised to build him a house there, which he did. In March 1911 Mary Ann Matthews, the defendant's sister, and one of the plaintiffs, prepared a paper on instructions from the testator. It is headed " Particulars of land for sale," and the description embraces 958 acres of farm land known as " Totten- ham Park," being the testator's whole property at Yeo, and admittedly it includes the 155 acres known as Lemon's. As will appear, the defendant consented to the inclusion. The paper contains this statement: "The owner of this property would not think of disposing of it, only he is too old to work it for himself, and his son is married and is starting on his own." It is signed by the testator. These particulars were handed to at least two land agents, and a sale of the whole property was evidently in contemplation both before and after the defendant began to occupy the 155 acres. In March 1911, and some time therefore before the defendant entered on the land (although he erroneously places it at a time later than his entry) there was a conversation in which the defendant asked the testator to transfer Lemon's paddock to him. The father replied, to quote the defendant, that "he would, but he would have to write to the mortgagees before he could transfer." On 30th March he did write to the mortgagees in these terms: " Kindly inform me per return of post whether you have the power to transfer any of the land I hold over to my son." Their reply, dated the next day, was that unless default were made and possession taken by them they had no power to transfer to the testator's son. But they added: "You can transfer the property subject to the mortgages, and our relations with the mortgagors remain unaltered." These letters were evidently written after the last mentioned conversation between father and son.

At a glance

Court

Decision date

Before

Source

Judgment (188 paragraphs)

Cited By (1)