QUEENSLAND. 1907. Deed of gift-Personalty — No delivery of possession - Necessary conditions of H. C. of A. transfer-Partnership share—Bank deposits-Crown leaseholds-Chattels persoul-Effectuation of gift-Creation of imperfect trust- Assignment —Notice -Judicature Act 1876 (Qd.) (40 Vict. No. 6), sec. 5 (v1.)—Bills of Sale Act BRISBANE, 1891 (Qd.) (55 Vict. No. 23), secs. 3 (1.), 4—Guardianship and Custody of April 24, 25; Infants Act 1891 (Qd.) (55 Vict. No. 13), secs. 3, 5. A domiciled resident of Queensland, being about to die, executed in 1899 a deed of gift voluntarily conveying to his wife and several infant children in equal shares the whole of his personalty. This included chattels in possession (household goods, implements, and live stock), promissory notes, bookdebts, money secured by inortgage of land in New South Wales held under the Real Property Act (N.S.W.), money on current account and fixed deposit in certain banks, a Crown leasehold in Queensland called Chudleigh Park Station, and a partnership interest in another pastoral property called Mount Sturgeon. Nothing, beyond the execution and delivery of the deed, was done in the direction of perfecting the transfer of the various properties before the death of the grantor, which occurred a few days later. His widow, being the executrix of his will of realty, and also legal guardian of the children under the Guardianship of Infants Act 1891 (Qd.), brought an administration suit against the children to decide whether she was to share in the personalty under the deed or as on an intestacy. VOL. IV. 68 May 4. Griffith C.J., H. C. OF A. 1907. ANNING v. ANNING. Held: The deed was intended to take effect as an absolute conveyance, and, if ineffective for that purpose, could not be made effectual as a declaration of trust. The effect of the deed depended upon whether the donor had, with regard to each particular item of property in question, done all that was necessary on his part to place the donees in the position of the donor, as between him and them. Milroy v. Lord, 4 De G. F. & J., 264, explained and applied. Held therefore that :-(1) The assignment of the chattels in possession fell under the Bills of Sale Act 1891 (Qd.) (55 Vict. No. 23), and was therefore ineffectual for lack of registration. But semble, the defect might be cured, as to so much only of the chattels as still remained in specie, by registration of the deed under that Act. (2) The mortgage debt secured on land in New South Wales could only be transferred in the mode prescribed by the Real Property Act of that State, and was not effectually conveyed by the deed of gift. (3) The Mount Sturgeon partnership share, being purely an equitable interest, was effectually conveyed by the deed. (4) The Chudleigh Park Crown leasehold, which was by the law of Queensland transferable only by an instrument in statutory form duly executed and registered in the Lands Department, was not effectually conveyed by the deed. (5) The promissory notes did not pass. (6) (Higgins J. dissenting) the bank deposits and book-debts did pass. The money on deposit was by the bank regulations transferable only in a certain way by cheque and indorsement of the deposit notes. No express notice of the assignment under the Judicature Act 1876, was given to the banks, but the manager of one bank was given the deed of gift to read. Per Curiam:-The bank regulations were no obstacle to transfer; but the handing of the deed to the manager was not a sufficient notice of assignment to satisfy the Judicature Act. Per Griffith C.J.-As notice could equally well be given by the donees, semble, the donor had done all that was necessary on his part. The wife being a donee, and legal guardian of the other donees, and also being appointed executrix by the donor, the gift was perfected. The deed operated also as a covenant by the donor to do nothing which would prevent the donees from obtaining the benefit of the gift. Per Isaacs J.-The donor had not perfected the gift, as he could have done, by giving notice, which was an essential factor under the Judicature Act for completing the title; and the defect could not now be cured by giving the requisite notice. But the deed of gift contained an implied covenant by the donor not to exercise any rights of ownership over the property assigned, which could be enforced. Per Higgins J.-The donor not having done all that he could under the Judicature Act have done to perfect his gift, the assignment, being merely voluntary, could not be enforced. Neither the appointment of one of the donees as executrix, nor her guardianship of the infant donees, was effectual to make the gift complete. There was no allegation in the statement of claim that there was such a covenant as the alleged implied covenant of the deed, and no argument that damages as for breach of that covenant could be recovered. But semble, no such covenant arises unless the gift is effectual to pass the property. Per Curiam (Higgins J. dissenting):-The action was an action for adminis tration, and costs could therefore be ordered to be paid out of the estate. Judgment of Cooper C.J. (Anning v. Anning, (1906) St. R. Qd., 317), varied. William Anning, being ill in 1899, executed a few days before his decease a deed poll, freely and voluntarily conveying to the appellant (his wife) and the respondents (his five children) in equal shares all his personal estate whatsoever, including Chudleigh Park Station, which was a leasehold from the Crown, his partnership share in Mount Sturgeon Station, all cattle and horses thereon, and money on current account and at fixed deposit in several banks. Besides these specified items the personalty included jewellery, furniture, implements, book-debts and mortgages. After the execution of the deed of gift, which was intended to save the personalty from succession duty, he executed a will of realty. Nothing further was done to effectuate the transfer of the property before his death. The appellant, being executrix of the will and guardian of the children, brought an administration action against the respondents to have it determined whether there was an effectual gift by the deed or an intestacy. In a similar suit between the same parties in New South Wales in 1899 the Chief Judge in Equity decided (1) that the deed was intended to operate as a donatio mortis causâ, and was ineffectual for lack of delivery, so that the result was an intestacy. In the present case Cooper C.J. held that the deed was a valid declaration of trust, operating as an immediate irrevocable gift, and constituting the donor a trustee of the beneficial interest in all the property concerned except so much of it as was effectually (1) 21 N.S. W. L.R. (Eq.), 13. H. C. OF A. 1907. ANNING v. ANNING. H. C. OF A. passed by the instrument itself. (Anning v. Anning (1)). From this decision the plaintiff now appealed to the High Court. 1907. ANNING v. ANNING. Feez, for the appellant. If this was a good deed of gift it is admitted that the chattels in possession passed, but not the other property. Certain of the property transferred by the deed was subject to special conditions of transfer which were not fulfilled at the time of the deed or since. In transfers of fixed deposits the banks require that a cheque for the amount shall be lodged and the deposit note endorsed by the owner. The Chudleigh Park Station, which was Crown leasehold, could only be transferred in accordance with the special form prescribed in the Regulations, Form 62, under the Land Act 1897 (61 Vict. No. 5): Wilson's Land Acts, p. 227. An imperfect instrument of gift will not be made effectual by turning it into a perfect trust. This deed was never intended as a donatio mortis causâ, but as a complete divesting of the property. But the donor did not do all that was necessary, according to the nature of the property, to make the transfer complete: May on Voluntary Dispositions, 2nd ed., p. 402; Milroy v. Lord (2); Richards v. Delbridge (3); Finucane v. Registrar of Titles (4). An assignment of an equitable chose in action to a volunteer will not be held valid, even though made by deed, if the gift was then left imperfect: Encyclopædia of Laws, vol. I., p. 356, § 3. [HIGGINS J. referred to Cochrane v. Moore (5).] The donor's partnership interest in Mount Sturgeon Station did not pass by the deed; notice should have been given to the Lands Department and to the donor's partners before his death; and an interest in the leaseholds on Mount Sturgeon Station could only be transferred in the statutory form. The mortgages which were included in the personalty were not passed by the deed, as notice to the mortgagors was necessary to complete the assignment. The donor did not convey all the legal and beneficial interest in these properties; and, if he had lived, his assignees could not have taken them from him or enforced the completion (1) (1906) St. R. Qd., 317. (2) 4 De G. F. & J., 264, at p. 274. (4) (1902) St. R. Qd., 75, at p. 88. (5) 25 Q.B. D., 57, at p. 72. ANFORD v. 1053 ANNING. of the gift: Donaldson v. Donaldson (1); Re Way's Trusts (2); H. C. OF A. Moore v. Ulster Banking Co. (3); Partnership Act 1891 (Qd.)-1907. (55 Vict. No. 5), sec. 34; Hardinge v. Cobden (4); In re ANNING Griffin (5); Nanney v. Morgan (6). v. Morgan (6). An assignment of a purely equitable interest to a volunteer might be validly made by mere deed of gift; but not where, as in the present case, the whole legal and equitable interest was united in the donor. Hart, for the respondents. The deed was equivalent to a valid declaration of trust of the Chudleigh Park leasehold. It was also an absolute assignment in writing of all choses in action comprised in the estate within the meaning of the Judicature Act 1876 (Qd.) (40 Vict. No. 6), sec. 5 (vi.), and the requisite notice in writing was given after the death of the assignor; or at any rate it was the duty of appellant as testamentary guardian of the respondents to give that notice, and it does not lie in her mouth to say that it was not given: Guardianship and Custody of Infants Act (Qd.) 1891 (55 Vict. No. 13), sec. 5. As between the assignor and assignees notice was immaterial, and the whole. interest of the donor passed by the deed; he could not set up as against the donees that he had not given notice, and no more remained to be done by him outside the deed. Therefore his interest in Mount Sturgeon passed under the deed: Pollock on Partnership, 7th ed., p. 95; Lindley on Partnership, 7th ed., pp. 348, 396. The banks, in requiring transfer of deposits in a certain form, were merely regulating the method of discharging their own obligations to depositors; this could not make the deposits non-assignable by deed: In re Dillon; Duffin v. Duffin (7); Anning v. Anning (8). [HIGGINS J. referred to Williams on Executors, 10th ed., p. 593.] The notice was properly given after death, and when given entitled an assignee to sue in his own name: Walker v. Bradford Old Bank Ltd. (9); Read v. Brown (10); In re Patrick (11); Gorringe v. Irwell India Rubber and Gutta Percha Works (12). (1) Kay, 711; 23 L.J., Ch., 788. (2) 2 DeG. J. & S., 365. (3) I.R. 11 C.L., 512. (4) 45 Ch. D., 470. (5) (1899) I Ch., 408. (6) 37 Ch. D., 346, at p. 351. (7) 44 Ch. D., 76. (8) 21 N.S. W. L. R. (Eq.), 13. (10) 22 Q.B.D., 128, at p. 132. (11) (1891) 1 Ch., 82. (12) 34 Ch. D., 128. |