Scottish Court of Session Decisions

The question involved here was—Whether a certain Thomas Rhind was to be presumed to be dead, and if so, at what date the presumption was to be held to have operated? It arose in a multiple-poinding at the instance of the executors of the late Alexander Rhind, merchant in Dundee. Mr Rhind died in 1841, leaving a last will and codicils thereto of different dates in 1840 and 1841. By the said will Mr Rhind left the whole residue of his estate to be divided among his nephews and nieces (of whom Thomas Rhind was one) in liferent and their children in fee, and in the event of any of them dying without issue, his or her share was to be divided among the others then alive. Most of the residue of the testator's estate had been distributed by the executors, and the only sum about which there was any dispute was the share effeiring to Thomas Rhind. The present action was raised by one of the surviving nieces of the testator for the purpose of having his share divided, and for various other purposes, which need not be referred to.

The following facts regarding Rhind, as brought out in evidence, are taken from the note of the Lord Ordinary ( Curriehill):—“Thomas Rhind was born in 1805. He was a sailor, and was for many years in the merchant service. He appears to have been of short stature, and naturally robust; but although he was a good sailor, he was unquestionably addicted to drink. During his employment in the merchant service he made, between his voyages, frequent visits to his relatives in this country, amongst others to his uncle the truster, and to his sisters Mrs Bell and Mrs Peddie, his last visit having been in 1839. He also corresponded with several of his relations, but particularly with his sister Mrs Bell, to whom he appears to have been much attached. After his visit to Scotland in 1839 he left the merchant service and entered the Royal Navy. He was second master of H.M.S. ‘Griffon, ’ then commanded by Captain Jenkins, who says in his evidence that Thomas Rhind was addicted to drink all the time he was in the service, which led to his being tried by court-martial for three separate acts of drunkenness and insubordination, and being dismissed the service by the sentence of the Court on 3d March 1843, when the vessel was on the West India station, near Jamaica.

“While in the Royal Navy Thomas Rhind was in the Naval Hospital, Haslar, on the sick list, from November 1841 till June 1842, under treatment for fistula lacrymalis; and immediately on his discharge from the ‘Griffon, ’ in 1843, he was admitted as a patient into the hospital at Kingston, Jamaica, and remained there under treatment for stricture till he was discharged on 31st March.

During Thomas Rhind's residence at Haslar his uncle, the truster, died, and the late Mr David Mitchell, writer, Dundee, the agent of the trustees, had a good deal of correspondence with him as to payment of a special legacy of £50 bequeathed to him by his uncle. The letters of Thomas Rhind to Mr Mitchell cannot be found; but from the letters to him in Mr Mitchell's letter-books, and from the legacy receipt and other documents in process, it is proved that the legacy of £50 was duly received by him in May 1842. It is also proved that a copy of the trustees will was sent to him when in Haslar Hospital by his cousin James Bell, and that Rhind had been dissatisfied with the settlement, as conferring less benefit upon him than he had expected. He does not appear to have made any claim at the time for his liferent under his uncle's will, probably in consequence of the ‘Griffon having sailed for Jamaica soon after June 1842. On 20th March 1843, shortly after his dismissal from the ‘Griffon, ’ he writes from the hospital in Jamaica to his sister Mrs Bell a letter in the following terms:— Dear Sister, —I am sorry to inform you of my ill-health, yet happy to say I am still alive, but God knows how long. I have been in the midst of all the dreadful earthquakes hear, and hurt nothing, but now obliged to come to hospital. I have left the service in consequence of a disturbance between me and the purser and gunner. I merely write you this to let you know I am alive, and not write to the ‘Griffon’ any more. If I live to come to England, I will try and get a ship when I am able to come out of this hole, for it's not like a hospital—rather a poorhouse. I was in Antigua when the earthquakes took place, which almost sunk the dock, and made our ship shake like the leave of a tree. There are great numbers of deaths hear from feaver, but I am recovering. My love to mother, Wm., and all the family.—I remain, with respect, your loving brother, Thomas Rhind.’

Page: 272↓

That letter, as the postmark shows, was received by Mrs. Bell on 27th April 1843; and from that day to this Thomas Rhind has never been heard of. It is true that although he was in bad health, and considered himself very ill at the date of that letter on 20th March, he was discharged from the hospital ten days afterwards, but the certificate of discharge does not bear that he was discharged cured. His declared intention, however, was, if he recovered his health and lived, to get a ship, if possible, and return to this country. But no evidence has been adduced to show that he ever left Jamaica. Certain it is that he never again visited any of his relatives, or wrote to any of them, even his sister Mrs Bell, and he has never since been heard of. All his relatives have for years considered him dead. Even Mrs Bell, who seems occasionally to have said that she would not be surprised to see him some day appear among them again, did not, in my opinion, seriously entertain any such expectation.”

The Lord Ordinary therefore held that it must be presumed that James Rhind predeceased his uncle, the truster, in the year 1843, and appointed the cause to be enrolled for further procedure.

The following part of his note explained the grounds of judgment:—“I think that if Thomas Rhind had lived for any length of time after his leaving the hospital at Kingston, he would have been heard of. He had expressed his intention of coming to England—that is, to Great Britain—as soon as possible. He was evidently not in flourishing pecuniary circumstances, and I cannot doubt that had he lived he would have applied for further payments out of his uncle's trust-estate. But he did not do so; and I think all these circumstances, taken in connection with his drinking habits, his ill-health, and the insanitary state of Jamaica, raise a strong presumption that he must have died shortly after the date of his letter to his sister Mrs Bell. Every case of this kind must be decided upon its own circumstances, and it is always a delicate and difficult matter in the case of a person born only seventy-two years before the inquiry takes place to presume death even from his absence and silence for thirty-four years. But, on the whole, I am inclined to think that the circumstances of this case, when taken together, are sufficient to raise a presumption of death. Whether payment of those parts of the fund in medio to which Thomas Rhind would be entitled if he were still alive should be made to any of the claimants except on their finding caution to repeat in the event of his reappearance, or to his representatives in the event of his death being thereafter proved to have taken place at a later date than 1843, is a question as to which the parties will be heard before any final decree is pronounced.”

William Bell and others, claimants, upon leave being granted, reclaimed.

Authorities— Fairholme v. Fairholme's Trustees, March 18, 1858, 20 D. 813; Barstow (Maltman's Trustees) v. Cook, March 14, 1862, 24 D. 790; Bruce v. Smith, Nov. 24, 1871, 10 Macph. 130; Maclay, &c. v. Borland, &c., July 19, 1876, 3 R. 1124.

At advising—