1. This is an appeal brought by Moira Burke from the judgment and order of the High Court (O’Hanlon J.) of the 16th January, 1990 granting the plaintiff declarations in her favour in respect of monies held on a deposit account with A.I.B. Bank plc in the joint names of Frances McFadden, deceased, and her niece, the first defendant, Moira Burke.

2. Frances McFadden, a widow, died on the 10th January, 1986. She had made her last will on the 20th July, 1983, whereby she gave all the property of which she died possessed or entitled to to her sister, Mary Lynch, the plaintiff, she also appointed her sole executrix.

3. Moira Burke had a sad life. She lost her father when young. Her mother re-married. She migrated to Glasgow in 1971 when she was 17 and stayed for about two years with her aunt, Frances McFadden. She married in 1975 but the marriage broke up in 1976. After the marriage break-up, the husband ceased to make maintenance payments after some short time and, during these hard times, it appears that Frances McFadden had been generous to her.

4. In September, 1983, Frances McFadden (who at that time had returned to live in County Donegal) visited Moira Burke in Glasgow and told her that she wanted to put her name into a joint account with a bank in Falcarragh, Co. Donegal. On the 28th September, 1983, a deposit account was opened with the Falcarragh branch of the A.I.B. Bank in the joint names of Frances McFadden and Moira Burke. A sum of £29,401.72 was lodged to the credit of the account by Frances McFadden and, thereafter, there were further lodgments made from time to time by Frances McFadden. At the date of trial the amount standing to the credit of the account was £53,364. At the hearing of the appeal we were told that the amount had now risen to about £65,000, including accumulated interest.

5. The deposit book was endorsed by the bank official as follows:-

6. The word “only” was underlined. Moira Burke’s address in Glasgow was inserted beneath Frances McFadden’s name though, as already stated, Mrs. McFadden lived in Co. Donegal at this time.

7. The learned trial judge said that he was satisfied that Frances McFadden, when opening the account in the joint names, intended that her niece, Moira Burke, should be entitled to the beneficial interest in any monies standing to the credit of the account on Frances McFadden’s death, should she pre-decease her niece. He was further satisfied that Frances McFadden intended to retain control over the account during her lifetime to the extent that no withdrawals could be made from it save only on her application.

8. The judge also attached some significance to the fact that Frances McFadden, two months before she opened the joint deposit account, had made her last will and he was of the opinion that the opening of the joint deposit account was intended to exclude any claim by the plaintiff to those monies remaining on deposit in the account at the time of her death.

9. Notwithstanding these findings, the judge felt constrained on the authority of the decision of the former Supreme Court in Owens v. Greene and Freeley v. Greene [1932] I.R. 225 to hold that Moira Burke was not entitled by survivorship to these monies.

10. The question for resolution on this appeal is whether that result can be upheld as one that is justified in law or equity?

11. The first inquiry to make is to find out the legal effect of the opening of the deposit account in the joint names. Thereby, the bank undoubtedly became a debtor to Frances McFadden in the amount lodged. The bank and Frances McFadden contracted that only Frances McFadden could make withdrawals from the account but that on her death Moira Burke would be entitled to the monies standing to the credit of the account on that date. By her presence (she had journeyed especially from Glasgow to Falcarragh for the occasion, at Mrs. McFadden’s request) and signature it is manifest that Moira Burke was a party to this contract from the outset. It is agreed on all sides that if the bank had paid over the monies then in the account to Moira Burke on Frances McFadden’s death, it could incur no liability to the estate of the deceased. However, it is contended for the plaintiff that in that situation Moira Burke would have to account to the estate for the monies so received. The monies on deposit with the bank represent a debt or chose in action. Since Frances McFadden and Moira Burke contracted jointly with the bank it would seem right that the bank should be liable to both – in accordance with the terms of the contract. There was sufficient mutuality of interest between Frances McFadden and Moira Burke to justify this assessment of the legal situation.

12. Mr. McCann’s essential submission before us is to leave aside any question of contract. He instead submits that what we are concerned with is that this chose in action or debt could not be gifted to Moira Burke except by a declaration of trust, a completed gift or by will.

13. He says that there has been no declaration of trust and he says that what we have here is an imperfect or incomplete transaction. Equity, it has been said, will not come to the aid of a volunteer to perfect an imperfect gift.

14. In this regard, we do well to recall something that Barry L.J. said in Gason v. Rich (1887) 19 L.R. (Ir.) 391 at p. 402, a case relied upon as one which, together with 0‘Flaherty v. Browne [1907] 2 I.R. 416, is said to provide a basis for the decision in Owens v. Greene and Freeley v. Greene [1932] I.R. 225:-

15. Leaving aside for the moment the concept of a gift, I think that it is best to consider, in the first instance, the contractual aspects of the case to find whether that provides a solution. In my judgment, it does. I have outlined what I think was agreed between the parties and it amounts to this: Moira Burke must be regarded as entitled to claim as a party to the contract under the actual terms of the contract.

16. In this case, as I have pointed out, Moira Burke was a party to the contract from the outset.

17. Dixon and Evatt JJ. in the course of a joint judgment said the following by way of answer:-

18. The answer the court gave was that there was none and distinguished Owens v. Greene and Freeley v. Greene [1932] I.R. 225, and certain Canadian cases in reaching this conclusion.

19. The case as pleaded and apparently presented in the High Court on the plaintiff’s behalf was to say that the monies on deposit were held on an implied or resulting trust by Moira Burke for the benefit of the estate of the deceased. As already pointed out, the learned trial judge felt that he was constrained by the decision in Owens v. Greene and Freeley v. Greene [1932] I.R. 225, to uphold this submission.

20. Since historically the concept of an implied or resulting trust was an invention of equity to defeat the misappropriation of property as a consequence of potentially fraudulent or improvident transactions, it would surely be paradoxical if the doctrine is allowed to be invoked to defeat the clear intention of the donor as found by the trial judge, an intention so clear, as the Chief Justice observed in the course of the debate before us, that he could not possibly have made any other finding as regards the donor’s intention than the one that he did make. In this regard it is apposite to recall what Lindley L.J. said in Standing v. Bowring (1886)31 Ch.D. 282 at 289:-

21. Towards the end of his submissions, Mr. McCann, no doubt in the light of the trial judge’s finding about the donor’s intentions, came to submit that his client’s claim rested in law and to say that the case was not concerned with a trust, express or implied. He says the situation is simply that the monies on deposit belonged to the estate of the deceased. However, I believe that at law the niece had a legal interest in the monies on deposit either by reason of the contractual relationship of the parties or, in the alternative, as a gift which admittedly was not a completed gift in the conventional sense but is nonetheless one that should be upheld as being a gift subject to a contingency viz, that of the death of the donor which contingency does not disqualify it as being a proper gift.

22. It seems to me that Owens v. Greene and Freeley v. Greene [1932] I.R. 255, gives cause for unease on a number of grounds. In the first place, the judgments contain a number of severe criticisms of witnesses in the case which sound strange to us since we are accustomed to holding that matters of primary fact are exclusively for the trial judge and even in regard to inferences of fact respect must always be afforded to the trial judge’s finding. ( Hay v . O’Grady [1992] 1 I.R. 210). But since no report of the judgment of the trial judge (Meredith J.) is existant, we do not know what findings of fact he made. Further, criticisms are made in the course of the judgments concerning counsel’s submissions which are difficult to square with the manner in which the case was pleaded and, indeed, the account of the argument put forward for the donees as it appears in the report. The case pleaded was that the deceased declared that the monies on deposit were to belong beneficially to the plaintiff in the event of the death of the deceased and would not in that event form any part of his estate. The argument apparently presented to the Court was that the sole question was whether the trial judge was justified in finding as a fact, as he did find, that the donor intended and expressed the intention that each (donee) should be entitled beneficially to the property of which he became the legal owner on the death of the donor, thus rebutting the presumption of a resulting trust.

23. As his last stand, Mr. McCann has urged that if it is thought that the concept of trust must be considered (and in my view because of the course that the case took in the High Court it is clear that we must deal with the relevance of the trust concept) that we should not overrule Owens v. Greene and Freeley v. Greene [1932] I.R. 225 since it has stood for so long and, therefore, has been relied upon over the years by practitioners in advising clients. In the circumstances, since I believe – a view shared by all members of the Court – that the decision was wrongly decided it should be overruled. ( The Attorney General v. Ryan’s Car Hire Ltd. [1965] I.R. 642; Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260 and Finucane v. McMahon [1990] 1 I.R. 165).

24. This will introduce a measure of consistency in our jurisprudence: it restores equity to the high ground which it should properly occupy to ameliorate the harshness of common law rules on occasion rather than itself to be an instrument of injustice. Further, it brings us into line with other common law jurisdictions.

25. I would allow the appeal.