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Shephard & Another v/s Cartwright & Others

    Decided On, 01 December 1954
    At, House of Lords

Judgment Text
Viscount Simonds


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 substantial estate subject to the claims to which I presently refer. The Respondents. 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 association 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.

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 purchaser; 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 substantially 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, 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 contained 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 consideration. 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 transaction 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 admissible 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.

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 anerror 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 honourable 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 surpassed 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 indispensable condition of such conduct being admissible that it should be performed 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 advancement. 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 beneesse 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 lawimputes 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. Mooreto 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 consideration 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


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 onthe 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 companies 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 todo 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 contention 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 advancement 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


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 argument 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 maintained 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.

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 companies 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 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 fathe

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r 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 ownersof 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.