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Original Printed Version (PDF)


[CHANCERY DIVISION]


In re COHEN, DECD. NATIONAL PROVINCIAL BANK

LD. v. KATZ.


[1950. C. 3865.]


1953 Jan. 22, 23.

Vaisey J.


Husband and Wife - Possession - Presumption of ownership - Death of husband followed by that of wife - Matrimonial home at all times the property of the wife - Discovery in matrimonial home after the death of wife of hidden bundles of banknotes - No evidence of ownership or of circumstances as to hiding of notes - Whether husband's or wife's estate entitled.


A gown manufacturer with a business in the East end of London lived for a number of years with his wife in a flat at Brighton, which was the property of the wife. The husband died in April, 1948; the wife in the following August. Both left wills, of which the plaintiffs were executors and trustees.




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After the wife's death, quantities of banknotes and coin, amounting to some £5,944, were discovered in the flat; these were hidden in a number of unlikely and unsuitable places: inside a radiogram, under a kitchen cabinet, etc. There was no evidence as to the ownership of the money, or as to when, by whom, or for what reason it had been secreted.

On the hearing of a summons taken out for the determination of the question whether the money belonged to the husband's estate, or to the wife's, or to both estates, and if the latter in what proportions:-

Held, that in the absence of any trustworthy evidence of ownership, recourse must be had to the legal presumption that the owner of land is prima facie the owner of chattels found on the land, so that the wife's estate was entitled to the money.

South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44; 12 T.L.R. 402, and Johnson v. Pickering [1907] 2 K.B. 437; 23 T.L.R. 579, applied.

Semble, that if (as was the most likely guess that could be made on the available evidence) the money was secreted as a "nest-egg" against an emergency, the principle of equality in matrimonial financial transactions laid down in Jones v. Maynard [1951] Ch. 572; [1951] 1 T.L.R. 700; [1951] 1 All E.R. 802, and Rimmer v. Rimmer [1953] 1 Q.B. 63; [1952] 2 T.L.R. 767; [1952] 2 All E.R. 863, should be applied only to the extent that the money should be considered as subject to an equal and severable joint tenancy in the joint lifetime of the spouses; while after the death of one it would remain for the sole benefit of the survivor; in which event also the wife's estate was wholly entitled.


ADJOURNED SUMMONS.

Max Cohen, a gown manufacturer carrying on business in the East End of London, and his wife Rebecca, lived at all material times in a flat at Brighton, which was the property of the wife. Both were almost illiterate, but the husband's business was highly successful. Both died in 1948, the husband in April, and the wife in August; both left wills, of which the plaintiffs were executors and trustees.

After the death of the wife it was discovered that banknotes and coin to the value of £5,944 13s. 6d. had been hidden in the flat. Bundles of notes were found in a number of peculiar and unlikely places, such as a space behind a water tank on the landing; a locked tin box behind a wardrobe; underneath a kitchen cabinet; and in a trunk containing female clothing. There was no evidence as to the origin of the money, or as to when, or by whom, or for what purpose the money had been secreted in this way. It had, however, been ascertained, and was stated in affidavits, that the husband had, over a number of




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years, withdrawn many thousands of pounds from his business; and that the wife, about a year before her death, had withdrawn some £1,500 from a bank deposit account.

After the death of the wife a number of questions arising out of the two wills fell to be decided; Wynn-Parry J., who heard the summons, gave certain directions now immaterial, and ordered an inquiry in chambers as to the question whether the notes and coin discovered in the flat belonged to the estate of the testator or to that of the testatrix, or partly to one estate and partly to the other, and if so, in what proportions. At the conclusion of the inquiry the master found himself quite unable to answer the question, owing to the lack of definite evidence, and concluded his certificate by leaving the question for the court.


B. S. Tatham for the plaintiffs.

Hubert A. Rose for beneficiaries of the wife's estate. The evidence available is very slight, and it is difficult to see what inference as to ownership can be derived from it.

Assuming that no reasonable inference of fact can be drawn, the court has to fall back on presumptions of law. Here, the testatrix was the freeholder, and there is a presumption that the freeholder is entitled to chattels unaccountably found on land. In South Staffordshire Water Co. v. Sharman1 rings were found in a pond, and the freeholder was held to be entitled to possession as against the finder. That case was distinguished in Hannah v. Peel,2 but there the freeholder had never been in possession. In Johnson v. Pickering3 (reversed on appeal, but on a distinct ground) it was said that the doctrine was not limited to objects found on the ground or on a floor, but extended to objects found inside other chattels; that would apply in the present case, e.g., to the bundles found in the radiogram and tin box.

Accordingly, at the wife's death, she must be presumed to have been in possession of the hoard; and as no better title has been shown, her estate is solely entitled to the ownership of it.

[VAISEY J. On the facts so far as known it might be suggested that the money was a nest-egg put away for the benefit of the survivor.]

I welcome and adopt that suggestion.

L. H. L. Cohen for beneficiaries of the husband's estate. If, on the facts, it cannot be said that the husband's estate should take the whole, there should be fm equal division.


1 [1896] 2 Q.B. 44.

2 [1945] K.B. 509.

3 [1907] 2 K.B. 437.




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It would be wholly artificial to apply the presumption that a freeholder is entitled to casually found chattels to a case concerning a husband and wife. In the absence of evidence of the fact of ownership or of the intention of the spouses the principle of equality laid down in Jones v. Maynard,4 and approved in Rimmer v. Rimmer,5 should be applied.

G. A. Rink for other beneficiaries of the wife's estate. As the flat was the wife's, prima facie possession was in the wife. and possession is prima facie evidence of ownership: Mason v. Lickbarrow.6 [He also referred to Ramsay v. Margrett,7 French v. Gething8 and Youngs v. Youngs.9]

Alternatively, if both spouses are taken to have contributed to the hoard, it would be possible to apply the principle that when the goods of two owners become mixed they are prima facie to be treated as tenants in common of the whole: Sandman & Sons v. Tyzack and Branfoot S.S. Co. Ld.10


VAISEY J. [after stating the facts:] I venture to describe this couple as having had some of the characteristics usually associated with magpies. They hid their money all over the flat in unsuitable situations, and, in all, a sum of £5,944 13s. 6d. was found concealed there.

The neighbours who were living on other floors of the same building disclaimed any knowledge of what was happening. Whether the husband and wife were none too sure of the solvency of banks, or of the Post Office; what they were doing, whether they were keeping it where they did because it seemed to be the safest place to keep it; whether it was money which represented the proceeds of the sale of some property; how long they had had it; where it came from; why they hid it; what they were doing with it and what their purpose was, nobody seems to have any idea; and we are left with the bare fact that on the death of Rebecca Cohen all this money was concealed in most unsuitable situations in the flat in which the parties had resided.

It is the kind of human story which invites speculation; and I could, I think, make some fairly ingenious guesses as to what might be the explanation of it all; but there is no kind of real certitude in the matter. There are certain circumstantial details about the hiding; for instance, some of the notes were wrapped


4 [1951] Ch. 572.

5 [1953] 1 Q.B. 63.

6 (1790) 1 H.Bl. 357, 360.

7 [1894] 2 Q.B. 18.

8 [1922] 1 K.B. 236.

9 [1940] 1 K.B. 760.

10 [1913] A.C. 680, 694.




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in black cotton material similar to that used in the loud-speaker of the radiogram. Apparently the notes, after they were discovered, were paid into a bank or otherwise disposed of without careful inspection, but from the evidence, so far as it goes, it would seem they were ordinary, fairly dirty notes; the sort of collection of notes which might have been made from time to time.

I have looked at the affidavits which were before the master to see if I could find anything more in them than he was able to find, but I have come to much the same conclusion that he did, which is that there is really nothing to throw any light on the mystery, for a mystery it is.

Now, with the conflicting claims of the beneficiaries under the two wills, I have somehow or other to decide to which estate this money belongs. Nobody can say that it is res nullius, an expression used in Sinclair v. Brougham1; it must belong to someone; and as I cannot hold that it is res nullius it is obvious that no claimants other than the beneficiaries of the two estates could be heard to assert any right to it.

First of all, as a question of fact, there is not the slightest indication to whom this money belonged. There is no suggestion that the husband and wife, who, as I was told, were living together in perfect amity, ever made any agreement about it between themselves. Not only is there no kind of evidence as to the source of this money, but there is none as to what was the purpose of the owner of it in depositing it in this extraordinary way in various places in the common conjugal dwelling.

Sometimes the only way out of a difficulty of this kind is to treat the claimants as entitled in equal shares, and that is a solution which has been adopted on many occasions by the court; but there is one material fact to which I must now refer, which is this: this house, No. 19 Montpelier Villas, was the freehold property of the wife; that is to say, the legal estate was in her. Whether she held as nominee or trustee for her husband, whether they had made any arrangement as between themselves for a tenancy or anything of that kind, I do not know; but the fact is that she was the legal owner of the house in which they lived and in which this money was found.

There is a consistent line of cases which shows that there is a legal presumption that the owner of land is the owner of


1 [1914] A.C. 398, 458; 30 T.L.R. 315.




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chattels found on the land; and for that proposition see South Staffordshire Water Company v. Sharman.2 The headnote is as follows: "The possessor of land is generally entitled, as against the finder, to chattels found on the land. The defendant, while cleaning out, under the plaintiffs' orders, a pool of water on their land," - that is the well-known Minster Pool at Lichfield - "found two rings. He declined to deliver them to the plaintiffs, but failed to discover the real owner. In an action of detinue:- Held, that the plaintiffs were entitled to the rings." The judgment of Lord Russell of Killowen C.J. concludes with these words3: "the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo."

A further authority dealing with the point is Johnson v. Pickering,4 in which this passage occurs in the judgment of Lawrance J.5: "The tendency of modern authorities is to make an intention to possess the test, in the absence of more direct evidence, of actual possession." Then South Staffordshire Water Company v. Sharman6 was cited, and I think cited with approval.

The questions of possession, of what amounts to possession, from what possession may be inferred, and when possession can be deemed to indicate ownership, are questions as to which there is much authority and may be much controversy. Certain principles are laid down, for instance, in Mason v. Lickbarrow,7 which contains a passage8 where it is said: "Possession of goods is prima facie evidence of title; but that possession may be precarious, as of a deposit; it may be criminal, as of a thing stolen; it may be qualified, as of things in the custody of a servant, carrier, or a factor. Mere possession without a just title gives no property, and the person to whom such possession is transferred by delivery must take his hazard of the title of his author."

The question of possession of property as between husband and wife has been adverted to and decided in many cases,


2 [1896] 2 Q.B. 44.

3 [1896] 2 Q.B. 44, 47.

4 [1907] 2 K.B. 437.

5 Ibid. 444.

6 [1896] 2 Q.B. 44.

7 (1790) 1 H.Bl. 357.

8 Ibid. 360.




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especially, of course, since the passing of the Married Women's Property Act, 1882: see Ramsay v. Margrett9 and Youngs v. Youngs.10

The possession here is ambiguous in one sense, because the husband and wife were both living in the house. It may be, of course, that these notes were put there between the death of the husband and that of the wife; but that does not seem at all likely; and assuming that they were placed there during the joint lives, then one may say that the possession of them as goods in the house is entirely ambiguous. Nobody can say, as between the husband and wife, to which of them the lawful possession must be attributed; and it is suggested and submitted that the principle which I have indicated, which depends, I think, largely upon the authority of the South Staffordshire case,11 strange though it may appear and slight as may be the straw which has to be grasped by the swimmer in this sea of ambiguity, must determine the issue in this matter, as there is nothing better to depend on.

I adopt this principle with reluctance, because it seems to me to be a somewhat inhuman way of approaching the problem; but I cannot bring myself to believe that there is any solution which I could accept as so likely, probable, or convincing that it could override what has been laid down to be a principle of law to resort to if there is nothing else to guide one. On the whole, it seems to me that I must follow that case, and hold that the money belonged to the wife. As I have said, we know nothing of the facts; but, in any case, the notes were in the flat when the wife died; and if they were placed there in the husband's lifetime then they were placed by one of two spouses on and in property which belonged to one of them; and I think that I must decide that these notes and coin were the property not of the husband but of the wife.

I have said that I regard this as rather an inhuman approach to the matter, and if I could have decided the case on a ground a little (if I may say so) more picturesque than one which depends on the ownership of the legal estate in the premises, I should have been very glad to do so. It was suggested that useful guidance was afforded by a recent decision of my own, Jones v. Maynard,12 approved in the Court of Appeal in Rimmer v. Rimmer,13 a case which was also helpful.


9 [1894] 2 Q.B. 18.

10 [1940] 1 K.B. 760.

11 [1896] 2 Q.B. 44.

12 [1951] Ch. 572.

13 [1953] 1 Q.B. 63.




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In the former case I came to the conclusion (which I cite without hesitation because my decision was later approved) that where a husband and wife have what is called a "joint purse," and the purposes for which the joint purse was formed come to an end, the proper way for a court of equity to deal with the money is not to investigate the precise sources out of which the fund was built up, but to assume that the intention was an equal division of what was left. I am bound to say that the analogy of that case does not seem to be applicable to the present facts, because I am rather disposed to think, if speculation be possible, that the most likely history of this deposit was that the husband and wife put the notes aside with a view to providing for the survivor of them. I am not suggesting that there was any intention to conceal assets from the Revenue authorities, for it may well be that during the perilous times of the war it was thought advisable to have a large sum of cash at hand in case the husband, in particular, should meet with sudden death, leaving the wife to maintain herself; and, of course, the same point would arise if the survivor were the husband.

I should rather suppose that, in such a case, the presumption would be not for a division but for an equality of ownership, in this sense: that the nest-egg (if it may be so described) was intended to remain intact for the benefit of the survivor after the death of one of the spouses; and applying Jones v. Maynard,14 so far as it ought to be applied, I should be disposed to think that if the principle of equality applied, it only applied to this extent - that, while the ownership of the fund might be presumed to be one of equality between the spouses, their interest in it was probably that of a severable joint tenancy, so that if they wanted to divide up the fund in their joint lifetimes they could have done so, but if they did not desire so to divide it then the fund would remain for the benefit of the survivor. As I have said, I do not like to suggest that there was any intention here of concealment of assets from the notice of the Revenue authorities; but I should have drawn the deduction that this fund was intended to remain for the benefit of the survivor of the two, without any right of participation in it after death by that one of them who should happen first to die.

If that is the view - and I must say that I only put it as an alternative to the main point on which I have decided the case, unsatisfactory though that point is - the result would be exactly


14 [1951] Ch. 572.




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the same. The wife having survived, if the arrangement was as I have described it, she would be entitled to the fund as survivor. However, I base my decision primarily on the point which I mentioned first; but in case I am held to be wrong in a higher court, I should desire to add as an alternative reason for deciding in favour of the estate of the wife rather than that of the husband, that if it were possible now to draw a deduction from one's knowledge of human nature and one's fancy in drawing pictures from very inadequate material, I should hold that this was a fund intended to be divisible, if desired, during the joint lives of the spouses, but intended otherwise to enure for the benefit of the survivor. On that view, also, the wife's estate would be entitled to my judgment.

In answer to the question raised by the summons, which was in these terms, whether, having regard to the master's certificate, the executors may deal with the notes and coin on the footing either that the whole was the property of the testator or that the whole was the property of the testatrix, or that the notes and coin belonged to both, I will declare that the whole was the property of the testatrix; and I will so declare not merely having regard to the certificate of the master, but to the evidence filed on this question which is mentioned in that certificate.


 

Declaration accordingly.


Solicitors: Haslewood, Hare & Co., for Bosley & Co., Brighton; Teff & Teff; T. V. Edwards & Co.; Gilbert Samuel & Co.


F. R. D.