Supreme Court of Canada
In re Estate of Hannah Mailman, [1941] S.C.R. 368
Date: 1941-06-02
In Re Estate of Hannah Mailman, Deceased
1941: February 17; 1941: June 2.
Present: Crocket, Davis, Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, IN BANCO
Joint bank account—Husband and wife—Deposit by wife in joint names of herself and husband—Signing of a printed agreement form required by the bank—Death of the wife—Whether husband is entitled to ownership of balance of money deposited—Construction of agreement—Evidence.
A wife deposited her own money in the joint names of herself and her husband, and both signed an agreement with the bank authorizing the latter to accept cheques drawn by either, the death of one "in no way (to) affect the right of" the survivor to withdraw all moneys deposited in the account. The wife kept the bank book and she alone drew on the account during her lifetime. A short time before her death when leaving for the hospital the wife handed the bank book to her husband saying "This is yours." The Registrar of Probate held that the money standing to the credit of the joint account at the time of the death of the wife intestate was vested in the husband (now appellant) as his own property, but this judgment
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was reversed by the appellate court on the appeal of the wife's sister (now respondent), where it was held that the husband, who had been duly appointed administrator of the estate, must render account and that the Registrar of Probate must accordingly add the amount to the inventory of the estate.
Held, affirming the judgment of the Supreme Court of Nova Scotia in banco (15 M.P.R. 169), Davis and Hudson JJ. dissenting, that, neither the agreement nor the evidence indicated any intention on the part of the wife to create a joint tenancy, in the money deposited, in favour of her husband.
Per Crocket, Kerwin and Taschereau JJ.—There is a legal presumption that, when the wife opened the deposit account in the names of her husband and herself and signed the agreement with the bank, there was no intention on her part to divest herself of her exclusive ownership and control of the deposit money and make her husband a joint tenant thereof. This presumption is a rebuttable presumption, which may always be overborne by the owner's previous or contemporaneous oral statements or any other relevant facts or circumstances from which his or her real purpose in making the investment or opening the account in that form may reasonably be inferred to have been otherwise. In the absence, however, of any such evidence to the contrary the presumption of law must prevail. In the present case, such evidence cannot be found to have been established from the only two sources available, viz.: the signed bank deposit agreement form and the appellant's own deposition before the Registrar of Probate.
Per Davis J. dissenting—The document signed by the wife and her husband cannot be treated merely as a direction to the bank to pay but it evidences an agreement between them and must be construed as evidencing the creation of a joint estate in the moneys in her husband. It is quite impossible to hold on the document that the wife merely created a trust in her husband resulting to her own benefit and did not create, or intend to create, a present joint interest in the moneys in him. Therefore, the husband as survivor was entitled in his own right to what remained in the account on the death of his wife.
Per Hudson J. dissenting—If the agreement were taken by itself and without extrinsic evidence, the deposit of moneys in the bank must be treated as a joint one to which the survivor was entitled; and the evidence does not contradict such interpretation.
APPEAL from the judgment of the Supreme Court of Nova Scotia in banco, reversing the decision of the Registrar of Probate for the county of Lunenburg, the appeal to the appellate court having been brought direct to that court by consent of parties and special order.
The matter in controversy arises in connection with a joint account in the Bank of Nova Scotia at Caledonia, N.S., in the name of the deceased, Hannah Mailman, and
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her husband, the present appellant, George Mailman. The deceased died intestate and administration was granted by the Court of Probate to her husband. The husband appeared before that court on April 20th, 1939, on the return of a citation for the closing of the estate. The inventory, for which he proposed to account, showed only bills receivable $33.70 and personal property $46. It appeared from the evidence that there was, at the time of the death of Hannah Mailman, the joint account above referred to amounting to approximately $5,000. One Mary Veniot, one of the next of kin, the present respondent, claimed that the amount of this joint account should be added to the inventory and accounted for by the administrator as part of the estate of the deceased. The Registrar of Probate decided against this contention, and his decision was reversed on appeal.
V. L. Pearson and J. L. Kemp for the appellant.
C. R. Coughlan for the respondent.
The judgment of Crocket, Kerwin and Taschereau JJ. was delivered by
Crocket J.—The appellant, George B. Mailman, and the deceased, both of whom the appellant's factum states were elderly people at the time, were married on October 27th, 1934. On September 30th, 1935, Mrs. Mailman, accompanied by her husband, opened a joint account in the Caledonia, N.S., branch of the Bank of Nova Scotia, in the name of herself and her husband with a deposit of $5,118.40, which admittedly belonged to her. Upon making this deposit they both signed a printed joint deposit account agreement form, as required by the bank on the opening of such an account. This agreement was as follows:
Agreement
Joint Deposit Accounts
To the Bank of Nova Scotia,
Caledonia, Queens Co., N.S.
The undersigned, having opened a deposit account with you in their joint names, hereby agree with you and with each other that, except only in the case of some other lawful claim before repayment, all moneys from time to time deposited to the said account and interest, may be withdrawn by any one of the undersigned, or his or her attorney or agent, and each of the undersigned hereby irrevocably authorizes the
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said bank to accept from time to time as a sufficient acquittance for any amounts withdrawn from said account, any receipt, cheque, or other document signed by any one of the undersigned, his or her agent, without any further signature or consent.
The death of one or more of the undersigned shall in no way affect the right of the survivors, or any one of them, to withdraw all moneys deposited in the said account, as aforesaid.
Dated at Caledonia, Queens Co., N.S., this 30th day of September, 1935.
Witness (es)
L. G. Irving Hannah Mailman.
L. G. Irving George B. Mailman.
In October, 1936, Mrs. Mailman suffered an illness, which necessitated her removal from her home to an hospital. She died intestate on May 22nd, 1937, leaving surviving her besides her husband as her next of kin one sister and five brothers. At the time of her death, apart from a balance of $4,648.23, which stood to the credit of the joint bank account above mentioned, the only property she owned consisted of some household furniture and personal effects.
The appellant made no application for letters of administration until he was cited by the Probate Court of Lunenburg County on the petition of his deceased wife's surviving sister to show cause why an administrator of the estate should not be appointed, when he filed a petition for his own appointment as such, upon the hearing of which he was appointed administrator of the estate on October 15th, 1938. In his petition for appointment as administrator he alleged that the value of the property, of which the deceased died possessed, was under $400. An inventory filed on October 18th after the appointment of appraisers appraised the entire value of her personal property, including household furniture and effects, wearing apparel and a radio at $46. The dependability of this inventory and appraisement may perhaps best be judged by the fact that the radio, for which the deceased had paid $60 two or three years before, according to the appellant's evidence, was listed at $3, and that, when the intestate's goods and chattels were subsequently sold at public auction they realized $124.85. On April 18th, 1939, the appellant petitioned the Probate Court for the passing of accounts and final settlement of the estate, and after due service of the citation upon the next of kin, a hearing took place before the Registrar of Probate thereupon, at which the deceased's sister was represented by counsel.
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No other evidence than that of the appellant administrator himself was taken on this hearing. From this it appeared that after his wife's death and months before his appointment as administrator he had paid bills for medical attendance upon his deceased wife, and her hospital and funeral expenses amounting to a little over $200 as well as a bill of $40 for a monument with money withdrawn by him from the joint bank account after the intestate's death; that he himself had drawn, no cheques upon the bank account during his wife's lifetime but that his wife herself had drawn upon it from time to time for household expenses; that when the account was opened at the bank the passbook was given to her and that she retained possession of it until October, 1936, when, just before leaving for the hospital she asked a lady friend to bring it to her, and that afterwards she passed it to him with the remark, "That is yours." He gave no evidence of any conversation between himself and his wife in reference to the opening of the joint bank account, other than the following statements which appear in the Registrar's record of his cross-examination by Mr. Coughlin, counsel for the intestate's sister:
When joint account was opened we talked it over between us and she was agreed. I do not know as I did suggest it. I do not think I did. I am swearing she was the one that suggested opening it at that time. I had a bank account. I did not make it a joint account with my wife * * * I was at bank with wife when she entered the joint account. I knew I could draw money. I could draw money any time. This money in joint account was not in inventory because it was mine * * * Wife was in good health when she gave me the passbook (that was according to his previous statement in October, 1936, just before she was leaving for the hospital). I never saw her in the insane asylum. Heard she was there.
Mr. Coughlan contended that the appellant was not entitled to charge the estate with the bills he had paid before his appointment as administrator for medical services, funeral expenses, etc., and that the balance standing to the credit of the joint bank account at the time of the intestate's death formed part of the intestate's estate and should be added to the inventory. The Registrar rejected both these contentions. With respect to the money standing to the credit of the joint account at the time of the intestate's death, he held that it thereupon vested in the appellant as his own property.
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The deceased wife's sister appealed from this judgment to the Supreme Court of Nova Scotia en banc, which allowed the appeal upon the question of the ownership of the balance standing to the credit of the joint bank account, and held (per Doull, Hall and Graham JJ., Sir Joseph Chisholm C.J. and Archibald J. dissenting), that Mailman must account for this as administrator of his deceased wife's estate. The formal judgment accordingly directed the Registrar of Probate to add the amount thereof to the inventory of the estate.
It is from this judgment that Mailman now appeals.
It appears from the opposing factums and from both the majority and dissenting judgments in the court below that the appellant there sought to support his claim, not only on the ground that his wife had made him a joint tenant with her of the deposit money by depositing it in the names of both and signing the bank's agreement form on September 30th, 1935, but on the alternative grounds that in October, 1936, she had transferred the whole to him, either as a gift inter vivos or donatio mortis causa, by handing over to him the bank passbook with the remark, "That is yours" in the circumstances disclosed in his wholly uncorroborated evidence before the Registrar of Probate. The majority judgment, of course, overruled all these grounds, while the learned Chief Justice in his reasons therefor makes it clear that the dissenting judgment is founded solely on the ground that a joint tenancy was created by the opening of the deposit account and the signing of the bank joint deposit account agreement form on September 30th, 1935, in pursuance of some antecedent oral agreement, which he felt in the circumstances he must assume to have taken place between the two signatories. If this be the correct view and Mrs. Mailman had thus effectually renounced her exclusive ownership of the deposit money at that time, it necessarily negatives the alternative claim that her delivery to her husband more than a year afterwards of the bank passbook in the circumstances alleged constituted either an independent gift inter vivos or a donatio mortis causa of the whole. The one proposition is clearly contradictory of the other in the absence of any evidence from which it could reasonably be inferred that the joint tenancy had in the meantime been revoked and the exclusive ownership of the deposit money revested
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in Mrs. Mailman, as the learned Chief Justice himself points out. The minority judgment, though distinctly dissenting from the majority judgment on the question of the creation of a joint tenancy, clearly concurs, so far as the alternative grounds are concerned, in the conclusion of the majority judgment that they must fail.
Apart from this, however, the appellant's counsel in his oral argument here did not insist, as he had done in his factum, upon any error in the judgment of the court below as to the insufficiency of the evidence to establish the necessary elements of a valid donatio mortis causa or an effective gift other than that of a joint ownership of the joint deposit account fund. He chose to rely upon the one ground which had been accepted by the minority judgment rather than upon the others which had been unanimously rejected by the court en banc and took the position that the appellant's right on his wife's death to treat the money as his own depended entirely on the construction of the signed bank deposit agreement form, in the light, of course, of the facts disclosed by the parol evidence. This, we think, is the only basis on which the appeal can possibly be supported. It clearly recognizes the deposit agreement as the central feature of the case, upon which the appellant must rely to displace the adverse legal presumption that there was no intention on the part of Mrs. Mailman to divest herself of her exclusive ownership and control of the deposit money and make her husband a joint tenant thereof when she opened the deposit account in the names of both.
That both law and equity interpose such a presumption against an intention to create a joint tenancy, except where a father makes an investment or bank deposit in the names of himself and a natural or adopted child or a husband does so in the names of himself and his wife, is now too firmly settled to admit of any controversy. This presumption, of course, is a rebuttable presumption, which may always be overborne by the owner's previous or contemporaneous oral statements or any other relevant facts or circumstances from which his or her real purpose in making the investment or opening the account in that form may reasonably be inferred to have been otherwise. In the absence, however, of any such evidence to the contrary the presumption of law must prevail. That is the
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clear result of such leading English cases as Dyer v. Dyer; Fowkes v. Pascoe; Marshall v. Crutwell; In re Eykyn's Trusts; Bennet v. Bennet, and Standing v. Bowring. This principle has been uniformly recognized in Canada wherever the courts have been required to adjudicate upon claims depending upon the creation of a joint tenancy or gift of a joint interest when the owner of the money involved has made investments or bank deposits in his own and another's names. There have been many such cases, particularly in Ontario and New Brunswick. Some of these involved disputes between the executor or administrator of a deceased father and a surviving son or daughter, and others disputes between the executor or administrator of a deceased husband and his surviving widow, where the presumption is in favour of a joint tenancy or a gift of a joint interest for the benefit of the child or of the wife, as the case may be. The decisions of course have varied according to the facts and circumstances of the particular cases, but it will be found on examination of the various judgments that the courts of both provinces alike in reaching their decisions have never failed to keep in mind the legal presumption and to decide the cases upon the basis of the sufficiency or insufficiency of the evidence to displace such presumption, whether it lies on one side or the other. Perhaps I should refer in this connection to two Ontario cases, viz.: those of Re Hodgson and Re Reid, in consequence of the special references made by Middleton J. at pp. 533 and 534 to the English cases of Dyer v. Dyer; Fowkes v. Pascoe and Marshall v. Crutwell, and those of Meredith C.J. at pp. 598 and 599 to the necessity of such presumption being rebutted and his adoption of the opinion of Cotton L.J. in Standing v. Bowring; and also to two earlier New Brunswick cases—those of DeBury v. DeBury and Vanwart v. The Diocesan Synod of Fredericton, because of Barker J.'s statement of the law in this regard at p. 353 of the former case, as founded upon
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Drew v. Martin; In re Eykyrìs Trusts, Fowkes v. Pascoe, and Marshall v. Crutwell, and of McLeod J.'s approaching his consideration of the latter case as well upon the doctrine laid down In re Eykyn's Trusts, as affirmed by DeBury v. DeBury, as will be seen at page 11, and of his reference to Marshall v. Crutwell at pp. 15 and 16.
The deposit money having admittedly been owned by Mrs. Mailman when it was placed in the joint account, and the presumption of law unquestionably being that she did not intend to create a joint tenancy in favour of her husband, the decisive question is: Is there evidence upon which it can reasonably be held that her intention was other than that which the law presumes it to have been?
It is obvious that if there is any such evidence there are but two sources in which it can be sought, viz.: the signed bank deposit agreement form and the appellant's own deposition before the Registrar of Probate.
As to the agreement itself, it is to be observed in the first place that it is in the form of a letter addressed to the bank on a closely printed form, which apparently was intended for general use without alteration in the various branches of the bank on the opening of any and every joint deposit account, whether in the name of two or three or more persons and regardless of any private agreement which may have taken place between the parties named in any particular deposit account. It contains no reference, express or implied, to the ownership of the money when deposited or to any previous agreement having been entered into between the parties concerning the opening of the account. It begins merely with the statement that
The undersigned, having opened a deposit account with you in their joint names, hereby agree with you and with each other that, etc.
For my part I cannot see how these words can be taken as necessarily implying that there was or had been any other agreement with the bank or between the signatories than that which is embodied in the document itself. It does not even indicate the relationship of the parties to the account. Its sole purpose and effect, as I read it, is
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to authorize the bank to accept from time to time as a sufficient acquittance for any amounts withdrawn from the deposit account any receipt, cheque or document signed by either. That it was intended to have no particular reference to any private arrangement or understanding between the two signatories seems to me to be conclusively shown by the last paragraph, viz.:
That the death of one or more of the undersigned shall in no way affect the right of the survivors, or any one of them to withdraw all moneys deposited in said account as aforesaid.
It is this particular paragraph upon which the appellant's counsel chiefly relied to support his claim that Mrs. Mailman intended to create a joint tenancy in favour of her husband. It will be noticed, however, that the paragraph merely provides that the death of one of the signatories shall not affect the right of the survivors or any one of them to withdraw the moneys deposited in the account, and that it in no way purports to provide that if and when the surviving signatory does withdraw such moneys he or she shall be deemed to do so as sole owner thereof. It merely preserves the right of either party, in the event of the death of the other, to withdraw all moneys deposited in the account in the same way as he or she might have done during the lifetime of both. No doubt had the letter of instructions to the bank not contained this provision, the appellant's right to withdraw any money from the deposit account would have ended with his wife's death. In that event the bank could not safely have accepted any cheque or order made by the appellant against the deposit moneys in its hands without proof that he was entitled to receive the outstanding balance, either as administrator of his intestate wife's estate or in his own right. That seems to me to be the only consistent explanation of the inclusion in the bank's general printed form of joint deposit account agreements of the particular provision relied on by the appellant, i.e., that it is a provision inserted in all its joint deposit agreements for the bank's own protection and convenience, and having no reference to the rights of the parties named as between themselves other than the right of each to draw upon the deposit account in the manner stated. Looking at the whole agreement form, as signed by Mrs. Mailman and her husband, I cannot see how it can well be regarded as other than
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a mere compliance with the usual requirements of the bank for the opening of any joint deposit account. Even if one were disposed to regard it as an agreement between the parties themselves as to their respective rights concerning the deposit fund, those rights, as already appears, are definitely restricted to the authority of each to withdraw money from the account in the manner stated in the first paragraph. This does not itself necessarily imply the right of the appellant to take the money as his own. Otherwise there could be no joint bank account to which any presumption of law could apply one way or the other, in view of the fact that such authority to withdraw is a necessary incident of the establishment of every joint bank account. We must take it, I think, to start with at least, that the right to withdraw the money as provided in the first paragraph of this supposed agreement between the parties did not per se create a joint tenancy. If it did not, how can the provision of the last paragraph that the death of one of the signatories shall in no way affect the right of the survivor, or as it puts it, "the survivors or any one of them," to withdraw the money as aforesaid, logically be construed as doing so? Clearly to my mind it leaves the implication precisely where the first paragraph does, so far as Mrs. Mailman's intention to create a joint tenancy is concerned. As Graham J. points out in his judgment in the court en banc, if a joint tenancy had been intended, there was no need of a special provision that the survivor could withdraw the outstanding balance of the joint account in the event of the death of one of the two signatories. That would have followed as a necessary consequence of Mrs. Mailman's death vesting the money in her husband as its sole and absolute owner in virtue of the joint tenancy itself, had she in fact on the opening of the deposit account made him a joint tenant with her. The signed joint bank deposit agreement form, therefore, is no more indicative of Mrs. Mailman's intention to make her husband a joint tenant with her of the deposit moneys than the deposit account itself.
As to the parol evidence, it consists entirely, as I have said, of the appellant's own deposition before the Registrar of Probate, which the Registrar himself describes as vague and of little use. All he says in connection with the opening of the account is that when the account was opened
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we talked it over between us and she was agreed. I do not know as I did suggest it. I don't think I did. I am swearing she was the one who suggested it * * * I know I could draw money. I could draw money any time.
He gave no details of any conversation with her either before or at the time the money was deposited, from which any inference could be drawn that she intended to renounce her exclusive ownership of the deposit money and give him such a joint ownership thereof as would entitle him upon her death to take the outstanding balance as her survivor. The most that can be said of this evidence is that he understood from what his wife said when they talked it over that he could draw money from the account any time. It adds nothing in this respect to what the formal bank agreement, which they both signed, itself says. It is true that he later alleged in connection with his wife's handing him the passbook more than a year after the opening of the account:
It was for me to take care of me. She used it during her lifetime, and when she was gone I would go and get it.
This latter statement apparently was intended as an addition or qualification to his wife's remark, "That is yours," which was so strongly relied upon in the court below in support of the contradictory theory of an intended subsequent gift inter vivos or mortis causa. Even if it were taken as applying to the alleged conversation relating to the opening of the deposit account, the statement that when she was gone "I would go and get it" obviously adds nothing to the right to withdraw the money in the event of her death, as provided by the bank's printed agreement form. On the other hand, if his later statement is taken as his understanding of what took place in connection with the alleged delivery of the bank passbook in October, 1936, as I think it must be, it plainly shows that, if his wife more than a year before had really intended to put him in the same position as herself with respect to the ownership of the deposit money, she had forgotten all about it. This evidence and the admitted fact that she kept the passbook in her own possession for a period of more than a year after the opening of the account seems to me to point to but one conclusion, viz.: that, if the appellant himself understood that his wife, when she opened the account, intended to make the fund
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joint property with right of sole ownership and property to the survivor, she herself had no such understanding or intention. And it is, of course, her intention, and not his understanding, which must be regarded as the determining factor.
Having regard to the strikingly vague and equivocal character of the appellant's testimony, and to the admitted fact that at the time of the opening of the joint account in question he had a bank account of his own, which he took care to keep in his own name, I have been unable to find, either in the deposit agreement itself, as I construe it, or in the deposition of the appellant himself any evidence, which can reasonably be held to rebut the presumption of law that Mrs. Mailman had no intention of giving the deposit moneys to her husband to the exclusion of her own next of kin.
I would therefore dismiss the appeal with costs.
Davis J. (dissenting)—This appeal arises out of a joint: bank account of husband and wife. The wife died intestate leaving as next of kin her husband and several, brothers and a sister; the husband as survivor of the joint depositors drew out the balance that remained in the bank account at the date of his wife's death and claims the money as his own property; the wife's sister seeks in these proceedings, commenced in the Court of Probate for the County of Lunenburg, in the Province of Nova Scotia, to have the moneys treated as part of the deceased's estate.
George and Hannah Mailman, apparently middle aged; people, were married on October 27th, 1934. The joint deposit of the moneys was made by them on September 30th, 1935. The wife died on May 22nd, 1937. The amount deposited at the opening of the joint bank account was $5,118.40; at the date of the wife's death there was a balance of $4,648.23. It is admitted that the moneys prior to the joint deposit had been separate estate of the wife and had been on deposit in the same bank to the credit of her personal account. Husband and wife went together to the bank; the wife closed out her private account; and together they deposited the proceeds in a new account—a joint account.
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Apart from the production of the document, to which I shall presently refer more particularly, which both of them signed at the bank when the joint account was opened, there are really no other material facts disclosed. There is no evidence that the account was opened merely for the convenience of the wife and no evidence that it was in an attempt on the part of the wife to make a testamentary disposition. And it is not the case of a mere deposit receipt or a pass-book entry. Both husband and wife were contracting parties with the bank and they signed a document at the time. That document is evidence of an agreement between them and the proper decision in the case turns upon the terms of that document. It is as follows:—
Agreement
Joint Deposit Accounts
To the Bank of Nova Scotia,
Caledonia, Queens Co., N.S.
The undersigned, having opened a deposit account with you in their joint names, hereby agree with you and with each other that, except only in the case of some other lawful claim before repayment, all moneys from time to time deposited to the said account and interest, may be withdrawn by any one of the undersigned, or his or her attorney or agent, and each of the undersigned hereby irrevocably authorizes the said Bank to accept from time to time as a sufficient acquittance for any amounts withdrawn from said account, any receipt, cheque or other document signed by any one of the undersigned, his or her agent, without any further signature or consent.
The death of one or more of the undersigned shall in no way affect the right of the survivors or any one of them, to withdraw all moneys deposited in the said account, as aforesaid.
Dated at Caledonia, Queens Co., N.S., this 30th day of September, 1935.
Witness(es)
L. G. Irving Hannah Mailman.
L. G. Irving George Mailman.
It is to be observed that husband and wife state that they, "the undersigned," have opened a deposit account in their joint names and that they "hereby agree," not only with the Bank, but "with each other that * * *." Further, they agree that the death of one "shall in no way affect the right of" the survivor to withdraw all moneys deposited in the said account. The document cannot in my opinion be treated merely as a direction to the Bank to pay.
It is not a question of some presumption of law; it is a question of the construction of the document. The
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document clearly evidences an agreement between the wife and her husband and must be construed, in my opinion, as evidencing the creation of a joint estate in the moneys in her husband. In the face of such a document and in the absence of any other material facts, the source of the money becomes immaterial. I find it quite impossible myself to say on the document that the wife merely created a trust in her husband resulting to her own benefit and did not create, or intend to create, a present joint interest in the moneys in him.
The husband as survivor was entitled in his own right to what remained in the account on the death of his wife. I would allow the appeal and restore the decision of the Registrar of Probate, with costs throughout.
Hudson J. (dissenting)—This is a very close case. The Registrar of Probate by whom the case was tried decided that the appellant was entitled to the fund in question.
On appeal, Chief Justice Chisholm and Mr. Justice Archibald took the same view, but Doull, Hall and Graham, JJ. took the opposite view, holding that the fund in question should be treated as part of the estate of the deceased Hannah Mailman.
The agreement signed when the deposit was made recognizes that the deposit was made by both George Mailman and his wife. It was to be in their joint names and they agreed not only with the bank but with each other that all moneys from time to time deposited in the account might be withdrawn by either one of them and, furthermore, provided that the death of one or more should in no way affect the right of the survivor to withdraw money deposited in this account. If this agreement were taken by itself and without extrinsic evidence, I think that there should be little hesitation in treating the deposit as a joint one to which the survivor was entitled. As stated by Chief Justice Chisholm:
When we turn to the agreement we find it stated by the parties that they have agreed to open the account in their joint names, in other words, a joint account, that either of them might make withdrawals and that the death of one of them should not in any way affect the right of the survivor to withdraw all the moneys remaining on deposit in the account. Does not such an agreement express the purpose of creating a joint ownership? Would not such language satisfy both parties that it sufficiently expressed an intention that there should be joint ownership? The signatories were lay people, not versed in the niceties of exact legal
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expression, and they would naturally believe that the document expressed the oral agreement which we must assume preceded the signing and was effective to enable the survivor to withdraw the money in the account as his or her own by right of survivorship.
From the evidence it appears that before the money was deposited it belonged to Mrs. Mailman, that no moneys of Mailman himself were deposited in the account and none drawn out by him during the life time of Mrs. Mailman. On the other hand, Mrs. Mailman did draw out various sums herself, but it appears that these sums were drawn out for the purpose of assisting in carrying on the home, that is, for the benefit of both husband and wife. The bank book was held by Mrs. Mailman until a few months before her death when it was handed over to her husband.
Mailman himself had an account in some bank or other in his own name. What this amounted to is not in evidence. Beyond this the evidence adds nothing.
It appears that the parties were in modest circumstances and, although there is no presumption in favour of gift by a wife to her husband, it seems to me that the circumstances here do not render a gift of the character recognized by the written agreement improbable or unreasonable.
The matter is not at all certain but I incline to the conclusion reached by the Registrar and the minority in the Court of Appeal. I would allow the appeal and restore the Registrant's order.
Appeal dismissed with costs.
Solicitor for the appellant: V. L. Pearson.
Solicitor for the respondent: C. R. Coughlan.
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