Scottish Court of Session Decisions

John Wardrobe Tawse, W.S., presented a petition, as factor and commissioner of David Foggo, residing in Calcutta, craving authority to make up a title to certain heritable estate belonging to Neil Gow Foggo, an uncle of his constituent, under the 5th section of the Presumption of Life (Scotland) Act, which provides that in the case of any person who has been absent from Scotland or who has disappeared for a period of twenty years or upwards, and who has not been heard of for twenty years, and who at the time of his leaving or disappearance was possessed of or entitled to heritable estate in Scotland, or has since become entitled to heritable estate there, it shall be competent to any person entitled to succeed to said absent person in such heritable estate to present a petition to the Court;” and the Court is empowered after advertisement and proof to grant authority to the petitioner to make up a title to the property in question.

Neil Gow Foggo, the absentee, was at the time of his disappearance in right of certain heritable property claimed under this petition, and it was averred that between the time at which he was last heard of and the expiration of the seventh year thereafter (at which latter date he must be held under the 8th section of the statute to have died) he had succeeded, as heir of conquest to his sister Ann Walker Foggo, to certain other heritable property, which was also claimed in the present petition.

After advertisement and proof had been led, the petitioner submitted to the Court that he had proved his averments so as to entitle him to decree as craved. He had called as witnesses a nephew, two cousins, and the wife of a cousin of the absentee; no nearer relatives were living. From their evidence it appeared that Neil Gow Foggo had left the country about 1833, had gone to Hobart Town, and had never communicated with his mother, who survived till 1874, or with any of his brothers or sisters, of whom several remained in this country, the last survivor dying in 1875. Three of the witnesses swore that nothing had been heard of the absentee after 1833, but the fourth witness, one of the cousins, swore—“I went abroad about 1838, and was away for six years and a-half. I knew Neil Gow Foggo. He left the country before I went away some three or four years. He would be twenty-three or twenty-four years of age when he left. Nothing more was ever heard of him, except from John Monro, a cousin of mine who is dead. He told some of the family that Neil Gow Foggo had been on board a man-of-war on which he, John Monro, was surgeon. I got the information after my return from the West Indies, and it was shortly before I got my information that Monro had seen him. He was serving on board the ship, but I don't know the name. It was a British man-of-war. I got this information from my sister, who is still alive in Australia. Neither I nor any of my relatives have heard anything of him since that time.”

The absentee's sister, Ann Walker Foggo, to whose estate the petitioner averred that the absentee had succeeded, died in 1845.

Upon the foregoing evidence the Lords thought that it was sufficiently proved that the absentee had survived his sister, and had not since been heard of, and granted authority as craved.

The second application was an application for authority to make up a title to moveable estate, proceeding on section 4 of the statute, which gives on the expiration of fourteen years the same powers to the Court as the 5th section on the expiration of twenty years. The absentee in this case, Malcolm M'Gregor, eldest son of Duncan M'Gregor in Greenock, sailed from Greenock in 1856, and deserted his ship at San Francisco on 12th September 1857, and never thereafter communicated with his relatives or friends. His father died on 9th June 1867, and the estate which was desired to be taken up under the present petition was Malcolm's interest in that estate; the petitioner was a brother, who was Malcolm's heir in mobilibus. On his father's death inquiries were made by advertisement and otherwise in California. The only evidence however that was obtained to show that he had been again heard of was a letter from H. M. Consul in San Francisco, dated 18th November 1867, and addressed to a writer in Greenock who was making inquiries on behalf of the family. That letter bore—“I inserted the advertisement in two local papers, and I lately have been informed that Malcolm M'Gregor was for some time working in the copper mines of Molineux County, and left there over a year ago for Amador County. I have now advertised in an Amador paper, which I hope will succeed in finding him; directly I hear anything I will again address you.” No more information was ever obtained.

The Lords granted authority as craved, holding that the absentee had been shown to have survived his father.