Shelley Ross Defendant/Appellant The Royal Bank Trust Company (Barbados) Ltd Plaintiff/Respondent v Jacques Ross Defendant/Respondent [ECSC]

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: PETERKIN, J.A.:,CHIEF JUSTICE
• Judgment Date: 29 March 1979
• Judgment citation (vLex): [1979] ECSC J0329-1
• Docket Number: CIVIL APPEAL NO. 3 OF 1978
• Date: 29 March 1979

[1979] ECSC J0329-1

IN THE COURT OF APPEAL

Before:

The Hon. Sir Maurice Davis, Q.C.—Chief Justice

The Honourable Mr. Justice Peterkin

The Honourable Mr. Justice Berridge (Acting)

CIVIL APPEAL NO. 3 OF 1978

Between:

Shelley Ross

Defendant/Appellant

and

The Royal Bank Trust Company (Barbados) Limited

Plaintiff/Respondent

and

Jacques Ross

Defendant/Respondent

Appearances:

T. Hobson for Appellant,

N. Butler with him.

C. Wilkin for Respondent No.(l)

D. Byran for Respondent No.(2)

PETERKIN, J.A.:

1 This is an appeal against the judgment of Hewlett, J dated 24th July, 1978. The matter was commenced by Originating Summons dated 4th March, 1977, taken out by the 1st named Respondent. It sought the determination of the Court on whether the proceeds of a fixed deposit of $31,008.67 made by Esbon Anthony Ross, deceased, at the Antigua Branch of the Royal Bank of Canada on the 6th day of March, 1972, formed part of the estate of the said Esbon Anthony Ross deceased, or whether their are the property of the Appellant Shelley Ross. The trial Judge concluded that there was neither a gift nor a valid declaration of trust in favour of the Infant Shelley Ross.

2 The facts as set out by affidavit evidence disclose that after the grant of probate, the 1st named Respondent took possession of the contents of a safe deposit box at the Basseterre Branch of the Royal Bank of Canada in which was found an envelope with the name of the Appellant written thereon and marked "personal" and which contained a deposit receipt dated 6th March, 1972, issued by the Royal Bank of Canada in Antigua in the sum of $31,008.67. The 1st named Respondent collected the proceeds of the deposit after it matured on the 7th March, 1973. The deceased was survived by seven lawful children of a former marriage and by his spouse of the second marriage, and three lawful children of whom the Appellant is the youngest. The 2nd named Respondent is a son of the first marriage. The deceased's estate which was valued at $246,583.42 did not include the amount on deposit in Antigua as at the material time the executors had contemplated paying over the amount to the Infant Appellant. In his affidavit sworn to on 7th March, 1977, Roger Simms, a forner Accountant of the Royal Bank of Canada, Basseterre, states at paragraphs 4, 5 and 6 at page 6 of the record,

"4. In or about the year 1972 the said Esbon Anthony Ross visited the Bank and inquired in my presence as to how he could put Term Deposits into the name of his daughter Shelley Ross without her having to pay tax on the interest which accrued on the said deposit. He was advised that he would have to make the deposit in his name so that he would receive the interest and pay income tax on it.

5.During the said discussion the said Esbon Anthony Ross expressed the desire to make a specific allocation to the said Shelley Ross but he did not mention the amount of the allocation.

6. I do not know whether or not he made the allocation of which he spoke."

3 The Appellant in paragraphs 3, 4 and 5 of her affidavit sworn to on 19th July, 1978, stated,

"3. I accompanied my late father Esbon Ross early in 1972 to the Royal Bank of Canada in the town of Basseterre where he spoke to a bank official about the procedures for putting money in a Term Deposit in ray name and the question of tax obligation, but I cannot remember what advice he was given.

4. On or about the 21st day of August, 1972 my said father (who was then suffering from Thrombosis) and I were driving alone in his car and he confided in me that he was going to die pretty soon. I said to him that he should not say such things, but he replied that I would be alright because inter alia there is a large amount on Fixed Deposit in the Royal Bank of Canada in Antigua and "it is all yours".

5. On a number of occasions I was...