106 / 328
(B.A.), Deois M. McDowell (B.C.L.), Desmond J.
O'Malley (B.C.L.), David A. Potterton, Make Nic
Shiomoin (B.Comm.), Thomas K. Smith (B.C.L.,
LL.B.), Malcolm B. YafFe (B.A., LL.B.).
20 candidates attended; 13 passed.
On the combined results of the Second and Third
Law Examinations the Council has awarded a Gold
Medal to James L. O'Keeffe, a Silver Medal to
Francis J. O'Flynn and Special Certificates to
Anthony C. Gore-Grimes, B.A., and Desmond J.
O'Malley, B.C.L.
DECISIONS OF PROFESSIONAL
INTEREST
Bankruptcy—administration of insolvent estate—relation
ship between stockbroker and client
—
proceeds of sale of
securities standing to credit of deceased stockbroker—
whether proof of debt on behalf of cestui que trust con
stitutes election—Irish Bankrupt and Insolvent Act,
1857,
section
22.
An executor sold securities belonging to the estate
which he was administering and they realised the
sum of £4,759
45.
9d. They were sold through a
stockbroker who subsequently died and whose
estate was found to be insolvent. The deceased
stockbroker's estate was being administered in
bankruptcy under section 21 of the Bankruptcy
Amendment Act (Northern Ireland), 1929, and at
the date of his death there was standing to his credit
in a bank the sum of £4,239 8s. 9d., which repres
ented part of the proceeds of the sale. This was not
immediately evident and in the meantime the
executor had proved for the full debt of £4,759 45. 9d.
When it transpired that the amount standing to the
credit of the deceased in the bank in fact represented
a part of the proceeds of the sale the executor sought
to amend his proof of debt and to prove for the
balance only, namely £519 i6s. od. He contended
that the sum of £4,239 8s. gd., standing to the
deceased stockbroker's credit being trust money did
not vest in the Official Assignee. His application
was opposed by the Official Assignee who, while not
denying that the money was traceable to the sale of
the securities and was therefore impressed with a
trust, said that the applicant, by proving for a debt,
had made an election to treat it as such and, con
sequently, to take his chance on whatever dividend
would come to him with the other creditors.
It was held by McVeigh J. that the proving of the
debt did not amount to any such election by the
applicant and leave was given to amend as applied
for. The learned judge said that he could not hold
that the act of proving the debt made the trust money
vest in the Official Assignee when it would not have
done so otherwise. In the circumstances the othef
creditors of a deceased were at no real loss. (In re
Calvert [1961] N.I., page 58.)
Education—negligence—stupid prank.
In Perry
v.
King Alfred School Society (October
27, 1961) a girl was injured at school when a heavy
radiator on which she was sitting fell on her after
two other pupils had tried to tip her off. The Court
of Appeal (Sellers, Upjohn and Diplock
L.JJ.) held,
dismissing an appeal from a finding that the school
was not negligent, that it was no part of the duty of
a school to forsee every act of stupidity that might
take place and that the appellants had failed to show
(i) that the school should have been aware that the
heater was inherently dangerous ; (2) that they
knew that this girl and others like her were in the
habit of playing with the radiators ; and (3) they
ought to have known that some children were in
the habit of rocking the radiators.
(The Guardian,
October 28, 1961.)
Fraud—misrepresentation and undue influence—undue
influence—Presumption—agreement between engaged couple.
In Zamet
v.
Hyman (October 18, 1961) on August
4, 1955, an elderly widow engaged to an elderly
widower executed at the office of her fiance's solicitor
an agreement under seal, by which she relinquished
all rights which she might have in her prospective
husband's estate under the relevant statutory
provisions, in consideration for which she would
receive £600 on his death. The solicitor explained
to her trie effect of the Inheritance (Family Provision)
Act, 1938, and the Intestates' Estates Act, 1952, but
no mention was made of the value of the prospective
husband's estate. The marriage took place three
days later. In July, 1958, the husband died intestate,
leaving an estate of about £10,000. In proceedings
to determine whether the agreement was binding on
the widow, the Court of Appeal (Lord Evershed
M.R., Donovan and Danckwerts
L.JJ.), affirming
Pennycuick J., held that the document executed by
the widow was so seriously one-sided that it required
strong proof, if it was to stand, that when she
executed it she fully understood its significance.
The onus on those claiming that the document was
valid and binding of rebutting the presumption of
undue influence by the deceased had not been
discharged, and that, accordingly, the document
should be delivered up for cancellation. (1961 All
E.R.—III—933.
Solicitors—negligence—purchase of annuity just before
death.
In Dunn
v.
Fairs, Blissard Barnes & Stone
(October 26,1961) the plaintiff was the administrator