Dames v Dean

• Jurisdiction: Bahamas
• Judge: Davis, J.
• Judgment Date: 16 January 1998
• Court: Supreme Court (Bahamas)
• Docket Number: No. 1336 of 1993
• Date: 16 January 1998

Supreme Court

Davis, J.

No. 1336 of 1993

Dames

and

Dean

Miss Jeanne Thompson for the plaintiff.

James M. Thompson Esq. for the defendant.

Inheritance and succession - Donatio mortis cause — Plaintiff claimed that she is entitled to a declaration that the delivery of the Savings Account Book to her by her deceased cousin constituted a valid donatio mortis causa and that she is entitled to the proceeds of the same — Court found that there was a valid transfer.

Davis, J.

1 By an Originating Summons filed on November 30, 1993, the plaintiff has sought an Order that she is entitled to a declaration that the delivery of the Savings Account book in respect of Account No. 701–826-0 at the Royal Bank, of Canada Main Branch, Bay Street, Nassau, The Bahamas, to her by her deceased cousin, the late Herman Tinker constituted a valid donatio mortis causa, and that she is entitled to the proceeds of the said Account No. 701–826-0 by virtue of the said donatio mortis causa.

2 The plaintiff in this matter is an octogenarian; so was her cousin and good friend the late Herman Tinker at the date of his demise on December 18, 1992. It is the plaintiff's case that prior to his death the deceased delivered to her a Savings Account Book issued by the Royal Bank of Canada in respect of an account which was assigned the number 701–826-0. She has alleged that on the occasion of his delivering the book to her the deceased told her he wanted her to have the money in the account. It is her contention that he did not give her the book merely for safekeeping. Essentially therefore what is being contended is that the deceased effected a valid donatio mortis causa in favour of the plaintiff of the amount of money in the aforementioned account prior to his death and that this sum of money does not fall to be administered in the process of the probate and administration of the will and estate of the deceased.

3 The plaintiff gave evidence as follows: The late Herman Tinker was her first cousin and they were very close. She often went to see him. He never came to see her. By around November 1992 he was blind and hard of hearing. He would telephone her and she would visit him and take something for him to eat and drink. She was his closest relative - no one else paid him any attention. His house at Hospital Lane was broken down and shaky. On the occasion of her visits they sat on the porch and talked and laughed. There was a lady by the name of Judith Smith who used to take care of are of him. Four days before his death on December 18, 1992, he came to the plaintiff's house in the company of her son. When they arrived at her house she heard him tell her son “take me to ‘Lease’ now”. She is popularly known by that net name. The deceased told her to come close to him; he rubbed his face against hers and he kissed her. He said he didn't want to die in the old house by himself; he wanted to die with her. In the course of the night he became ill. He unbuttoned his shirt and took out his passport and bankbook and gave them to her and told her to have them. The plaintiff identified Royal Bank of Canada bankbook with savings account number 701–826-0. It showed a balance of $75,000.00.) The deceased placed the passport on the table and handed the bankbook to her and said “‘Lease’ you have this. “He said he wanted her son to take him to the hospital but he said he was busy and that she should call his niece Dorothy Phillips. She called his nephew but he didn't come. Mrs. Phillips acne and said she would take him; but he said ‘No’ for he didn't like any of them. She called one of her friends and asked her if she could take him home. She agreed and did so. It was some four days later that he died. Some time after Mrs. Phillips came to her and told her she was making arrangements for the funeral and enquired if the deceased had left any book with her. The plaintiff told her he had left a book with her but she would not be giving it to her because the deceased gave it to her. She did not tell Mrs. Phillips that she was keeping it for anyone because she was keeping it for herself. Her reply was “O.K. If he gave you the bankbook, keep it.”

4 The plaintiff further stated that subsequent to the date of the funeral the executor, Mr. Randol Dean, came to her house and stated that he had come for the bankbook and she told him that she was not going to give it to anyone. She stated that he was in charge of the will and she was in charge of the bankbook.

5 The plaintiff was subjected to mildly vigorous cross-examination by Mr. James Thompson, Counsel for the Executor, Mr. Randol Dean, due regard, no doubt, being had to her advanced years. Her response amounts substantially to the following. The deceased had not spent any time at her house other than the two days and two nights shortly before his death. She knew his sister Hilda Davis and her son, Ambrose Davis, and her daughter, Dorothy Phillips. The plaintiff took food and drink for the deceased three to four times each month. On these occasions she did not see anyone else in the yard. His favourite dishes were souse and Johnny cake. Her aunt had adopted Randol Dean and he became the adopted brother of the deceased. She never saw Mr. Dean at the deceased's home. She had seen Judith Smith there but she never ‘associated with her’. The first time Miss Smith spoke to her was after the funeral at which time Miss Smith told her that the deceased was trying to get in contact with her because of his bankbook. She didn't know why Miss Smith told her that. Miss Smith did not tell her that she (Miss Smith) had the book. She couldn't have said that because she (the plaintiff) had the book. She did not know that Mr. Dean and Mrs. Phillips head the responsibility of feeding the deceased. The deceased had told her that no one was taking care of him. She believed that the deceased paid Miss Smith but she knew not what for, whether as housekeeper or for any other reason. She did not know who drew money from the bank for the deceased or whether he did so himself. After the deceased's death and before the funeral, Mrs. Phillips came to see her and asked if the deceased had left any kind of book with her. She told her he left a passport and a bankbook. Mrs. Phillips said it was all right, if he has given her the bankbook she was to keep it. She did not tell her that she was holding it to determine who was entitled to it. Mr. Dean visited her after the funeral and told her he was the Executor and was in charge and that she had the bankbook and she was to give it to him. She told him that she was in charge of the bankbook. On his visit she asked him whom he was, for she did not know him. She knew her aunt ‘had adopted a fellow’. Mr. Dean identified himself as the Executor of the deceased. She denied going into the room to take out the bankbook, nor did she offer it to him and then retrieve it. She could not have done so because it was ‘in her lawyer's hands’. She drove with Mr. Dean to her daughter's house where they talked about the deceased's will. She told her daughter that the deceased had left a will and that Mr. Dean was the ‘headman’. The plaintiff asserted that the bankbook was no business of Mr. Dean and that she was not holding it for anyone entitled to it. Put to her, she denied the allegation contained in an affidavit sworn to by Mrs. Phillips, that she volunteered the information that she had the deceased's bankbook and that she was retaining it or had agreed to do so for the personal representative or the executor of the deceased. She was emphatic that the deceased told her specifically to deliver it to no one - that she was to keen it.

6 Miss Judith Smith was called as a witness for the plaintiff. She works at St. Peter's Church, but prior to that worked at the Home For The Aged and before that as caretaker of the late Herman Tinker. She took care of him for about five years up to sometime in 1992 when she left his house. Sometime after this he came and stayed with her for three nights. At the end of this period he asked her to get in touch with Miss Dames. She knew Miss Dames as she used to bring him soup and talk with him at his home. Miss Smith did not know where Miss Dames lived and as he was sick she took him to the doctor. After the visit to the doctor he gave her the telephone number to get in touch with Miss Dames. He told her that he wanted to get in touch with his lawyer because he wanted to change his will. She used to keep his bankbook and passport. He said he wanted to give Miss Dames the money in his bank account. She used a pay-phone to call Ambrose Davis to come and collect him because her place was too small. After he left she had no more contact with him. She attended his funeral and spoke to his relatives there. She asked Miss Dames if she got the deceased bankbook because when she last spoke with him he told her he wanted her to have it. She could not recall whether the conversation took place at the graveside or at the church.

7 The following is the outcome of the cross-examination of Miss Smith by Mr. Thompson: She had worked for the deceased for some five years. She knew that he banked with the Royal Bank on Bay Street, but she did not know whether he had a lot of money. He never paid her for three years and she has billed his estate for her service. She has spoken with a lawyer to make her claim. When she was employed by the deceased she worked full-time until he told her he had no more money to pay her. She then got a job at ‘Percy Rogers’ but still lived at the deceased's home and took care of him. She said that she would be surprised to learn that at his death he had $75,000 in the bank. She did not do any banking on his behalf. She accompanied him to the bank and sat and waited for him while he transacted his business. On many occasions she had to call the ambulance for the deceased whenever he was ill. When he was leaving...