MARTIN CASHIN Vs. PETER J CASHIN

JUDGEMENT

(1.) This is an appeal from the judgment of the Supreme Court of Newfoundland (Sir William H. Horwood C.J. Kent J. and Higgins J.) given on 8 January 1937, dismissing by a majority (Kent J. dissenting) an appeal from the judgment of Sir William H. Horwood C. J. given on 21 July 1936. By the judgment it was ordered that an agreement under seal dated 8th September 1927, to which the appellants and the respondent were parties be set aside, and declared to be null and void. The agreement under seal dated 8 September 1927, (which will be referred to as "the deed") related to the estate of Sir Michael P. Cashin who died on 30th August 1926. He left surviving him his wife, the appellant Gertrude C. Cashin (Lady Cashin) and four adult children, the appellants Lawrence V. Cashin, and Martin Cashin, the respondent Peter J. Cashin, and a married daughter Mrs. Mary Fox. Sir Michael Cashin had made his last will on 15 November 1925. By it the appellants Lady Cashin and Lawrence Cashin were appointed to be the executors. He bequeathed to each of his sons $40,000, and after some small charitable and other legacies he bequeathed the residue of his estate to Lady Cashin for life and after her death to his three sons in equal shares. The two executors proved the will on 20 September 1926. According to the inventory and valuation of the property filed with the petition for letters of probate the total value of the estate was $99,496. The sum of $4702, being the duty payable on this amount under the (Newfoundland) Death Duties Act, 1914 to 1916, was promptly paid. On this footing the estate was insufficient to pay the legacies in full and in fact the three sons would have received roughly only $20,000 apiece, and there would have been no residue.

(2.) Sir Michael in the year 1924 had made or at least attempted to make some large gifts to Lady Cashin. In particular ha had, in circumstances which were investated at the trial, transferred to her 300,000 Dominion of Canada 5 per cent. .943 Bearer Bonds. That transaction took place on 8 May 1924. He also on the same day had given to her $40,000 which had been standing to his account at the fontreal Trust Company, St. John's ; and on 21 May 1924, he gave to her a further sum of $20,000 which had been standing to his account at the Bank of Montreal, St. John's. No attempt has been made by any person to impeach either of these latter gifts; but the respondent alleged in the action that the gift of the bonds was imperfect and therefore void; and it is necessary to state certain undisputed facts as to this alleged gift. Sir Michael had purchased the bonds through agents in Canada in March 1924, and they were forwarded to him at the Bank of Montreal, St. John's. After the arrival of the bonds, Sir Michael with his son Mr. Lawrence Cashin, went to the Bank of Montreal, took possession of the bonds and placed them in a safety deposit box rented by him in the vaults of the Royal Bank of Canada, and in which he kept his personal papers and securities. Shortly afterwards, Sir Michael, wishing to present these bonds to his wife as a gift, consulted his son-in-law, Mr. Cyril J. Fox, K.C., a lawyer of experience practising in St. John's, as to how he could effect the gift.

(3.) The interview with Mr. Fox took place in Sir Michael's bedroom at his home in the presence of Lady Cashin and of his son Mr. Lawrence Cashin. Sir Michael told Mr. Fox of his intention to give the bonds to his wife and asked him what he should do to carry out his intention. Mr. Fox told him he might do so either by deed or by manual delivery of the bonds themselves to Lady Cashin. Accordingly on or about 8 May 1924, shortly after his conversation with Mr. Fox, Sir Michael, accompanied by his son Mr. Lawrence Cashin, went to the Royal Bank of Canada for the purpose of transferring the bonds to Lady Cashin. At the bank he was told by the officials that it was necessary for Lady Cashin to be present to effect the gift and sign the lease of the deposit box to be issued to her for the safe keeping of the bonds in place of that previously held by Sir Michael. Mr. L.V. Cashin then went home for Lady Cashin and brought her to the bank for this purpose. Sir Michael surrendered his lease of the deposit box to the bank and the bank issued a fresh lease of the deposit box to Lady Cashin. She then executed a printed form on the back of the lease the substance of which (the original has long since been destroyed) was in these terms: