Scottish Court of Session Decisions

Mrs Mary Thomson or M'Gregor died without issue at Glasgow in December 1882. She was at the time of her death possessed of certain moveable estate, among which was a sum of £134 at her credit in the National Security Savings Bank. Shortly after her death, Robert, John, and Thomas Thomson, three nephews and next-of-kin of the deceased, presented a petition in the Sheriff Court at Glasgow against James Dunlop, teacher there, whom they alleged to be a vitious intromitter with her effects. They averred that they had presented a petition to the Commissary of the county of Lanark to have themselves decerned executors qua next-of-kin to the deceased; that the defender, who was in no way related to the deceased, had, without any legal right or title, taken possession of her whole moveable and personal estate, consisting, of furniture, sums of money, and everything else in the house, and that he had sold part of the furniture. They prayed the Court “to interdict the defender from appropriating to his own uses, from selling, paying, or giving away, otherwise than as the Court shall appoint, any of the moveable and personal means and estate of the said deceased Mrs Mary Thomson or M'Gregor, and to ordain the defender forthwith to lodge in the hands of the Clerk of Court the whole moneys, goods, gear, and effects, including bonds, mortgages, deposit-receipts, bills, bank books, security writs, and every other document or paper connected with

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the moveable and personal estate of the said deceased Mrs Mary Thomson or M'Gregor, at present in the defender's possession or under his control, to abide the future orders of Court.”

They pleaded (1) that as next-of-kin they were entitled to make the application for the preservation of the estate; (2) that the defender being a vitious intromitter, should be ordained to consign the funds in the hands of the Clerk of Court. “(3) The defender having illegally, and without any right or title whatever thereto, carried away from the deceased's house her whole moveable means and estate, or the proceeds thereof, should be forthwith ordained to lodge the same in the hands of the Clerk of Court.”

The defender admitted that he had, in terms of instructions from the deceased, attended to the requirements of her death and funeral, and given orders to sell and realise the household furniture and effects. He explained that this was done in fulfilment of her directions to him given shortly before she died. The proceeds, he averred, he had applied in necessary payments on behalf of the deceased. With regard to money belonging to deceased, he stated that there was a sum of £134 deposited in the Savings Bank in the name of the deceased and himself, payable to either or survivor, and that the pass-book had been delivered to him by the deceased some days before her death, and the sum contained in it was vested in him for purposes with which her next-of-kin had no concern.

He pleaded—(1) No title to sue. “(2) The action is inept and incompetent in respect the moveable effects of the deceased had been previously realised and disposed of in terms of her instructions.”

The Sheriff-Substitute ( Spens), on 12th January 1883, granted “interim interdict against the respondent parting with or in any way allowing to pass from his control any goods or moneys in his hands, the property of the deceased Mrs Mary Thomson or M'Gregor, and specially a sum of £130 or thereby, being the amount admittedly uplifted by the respondent since Mrs M'Gregor's death from the Savings Bank, and which is said to have been in the joint names of Mrs M'Gregor and respondent, and which respondent alleges to have been a donation, until the future orders of Court.”

A proof was subsequently allowed, and meanwhile the defender was appointed to consign in Court the sum of £130, which was done.

At the proof the evidence of the defender was to the following effect:—He had known the deceased from his infancy, but was not related to her. He and his mother were often in her house; he himself was there repeatedly for about six weeks before her death, and every day during her last illness, which lasted about a week, the deceased having frequently sent for him to come. Four or five years before her death the deceased told him of some parties whom she wished to give money to after her death, and he took a note of their names at the time. On the Thursday evening before her death (which occurred on Sunday following) she sent for him and gave him him her bank pass-book and an accepted bill drawn by her. There were then present besides deceased and himself only his mother and a Mrs Gemmell, a niece of the deceased. “I got the bank book from Mrs M'Gregor in the house. It was brought to her in the house. The bill was along with it. The book was in a chest in one of the rooms. She sent for me on the Thursday night, and asked me to get it. She was very ill at the time, and Mrs Gemmell and my mother were present when she asked me to go and bring the book to her. I had had the book in my hands several times before. She gave me both the bill and the book. I put them in my pocket at the time. I took them home with me on the Thursday. (Q) Did she say what you were to do with the money which was in the bank pass-book?—(A) She handed the book to me, and said, ‘You know what to do with it.’ She did not say anything else. I knew what to do with it, because she told me. … Mrs M'Gregor with her own hands placed the book in my hands.” When she mentioned the names of the persons to which she wished to give sums of money she told him “to keep the balance.” On the Thursday night before her death she added another to these names. She also told him during her last illness that she wished him “to give her a decent funeral, and to sell off the things in the house.”

The evidence of defender's mother and Mrs Gemmell corroborated his evidence as to what passed on the Thursday evening. After the death he took charge of the funeral, and sold the furniture by auction for £27, 8s. 7d., while the expenditure on current house rent, servants' wages, deathbed and funeral expenses, and charges of sale, amounted to £26, 7s. 2 1 2d. He then uplifted the money in the bank. The pass-book belonging to deceased began in 1878 (being a continuation of an older account in the name of the deceased alone) and was in the names of deceased and Mary M'Naught, or either or survivor, and was afterwards, in 1880, altered to that of the deceased, “Mary Thomson and James Dunlop (the defender), teacher, 644 Gallowgate, or either or survivor.” It appeared that the deceased was unable to write, while Mary M'Naught and the defender were.

The Sheriff-Substitute found “(1) That the bank book referred to in the pleadings, and the amount therein contained, were donated by the deceased Mrs M'Gregor to the defender on the Thursday previous to her death, which happened on 24th December 1882; (2) that defender took possession of the furniture and other moveable property belonging to the said deceased Mrs M'Gregor, and immediately after the death of the said lady, and that he did so under the impression that, in terms of the verbal instructions of the deceased, he was entitled to do this; (3) that he sold off the household furniture very shortly after the death of the deceased, realising a little over £20: Therefore finds as matter of law that pursuers are not entitled to any part of the sum vouched for by the bank book referred to donated by the deceased, but that the defender had no legal title to intromit with the furniture and effects of the deceased other than the sum referred to above; and, with these findings, grants warrant to and authorises the Clerk of Court to pay over £100 of the consigned money to defender, and the rest of the consigned money three months after this interlocutor shall have become final, if by that time no action of count and reckoning has been raised against the defender by the pursuers, or any of them, with

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reference to his intromissions with the estate of the deceased: Quoad ultra dismisses the action, finds no expenses due, and decerns.”

The pursuers appealed to the Sheriff ( Clark), who on 14th June pronounced the following interlocutor:—.… “Finds that the present action concludes for interdict against the defender appropriating or otherwise applying the moveable and personal estate therein referred to, and also claims that the defender be ordained to consign in the hands of the Clerk of Court the whole effects and documents therein specified, to abide the future orders of Court; but that said petition contains no conclusions as regards payment either to the pursuer or to any other person: Finds that in answer to this the defender pleads in effect that the pursuers possess no title to sue, and that the conclusions in general are unwarrantable and incompetent, and bases his contention on the allegation, not that any donation had been made to him by the deceased either of the bank book or its contents, but that said bank book was delivered to him, the defender, some days before the death of the deceased, and that the sum therein contained vested in him for certain purposes—in other words, that he was made trustee or executor under a nuncupative legacy: Finds, in point of law, that in the circumstances of the case the action is competent as a means of placing the moveable estate of the deceased in sure custody until it be ascertained in competent form who is entitled thereto, and that the title possessed by the pursuers as next-of-kin is sufficient to warrant their raising and insisting in the present action to the extent aforesaid: Finds that the order for consignation was, in the circumstances, properly made and duly implemented; but that no termini habiles exist in the present action, nor does it contain any conclusions in respect of which the funds so consigned can be distributed or apportioned: Therefore recalls the interlocutor appealed against, and sists procedure for one month in order that the proper course may be taken at the instance of the parties to ascertain in competent form in what way the consigned money should be dealt with, and decerns.”

Pending the action the pursuers had obtained themselves decerned executors-dative qua next-of-kin of the deceased, and had thereupon raised a fresh action against the defender (the date of the first deliverance in which was 14th June 1883, the same date as the Sheriff's judgment just quoted) in that character. In this action they concluded for declarator that the sum of £134 above referred to was part of the executry funds of the deceased, and that they as her executors were entitled to uplift it.

The defender stated—“The deceased was interested in a sum of £134, 1s. deposited in the National Security Savings Bank, Glasgow, in names of the defender and the deceased, payable to either or survivor, which pass-book was delivered by the deceased to the defender some days before her death, and the sum contained therein was so gifted or donated to the defender in fulfilment of previously expressed intentions and arrangements on the part of the deceased, and vested in and became the property of the defender for certain purposes with which the pursuers have no concern.”

He pleaded—“(5) The fund in question being a gift or donation by the deceased to the defender, for himself and others, validly and effectually made by the deceased, he is entitled to warrant to uplift the fund.”

The Sheriff conjoined the actions, and thereafter pronounced this interlocutor:—“Recalls the interim interdict granted on 12th January last: Finds and declares in terms of the prayer of the petition of the second of the conjoined processes: Grants warrant to the Clerk of Court to pay to the pursuers the amount consigned in his hands on 8th February last, reserving to pursuer, and to the defender, and all other persons, such claims as they may have in relation to the executry estate of the deceased Mrs Mary Thomson or M'Gregor, and decerns.”

“ Note.—The pursuers claim the consigned fund as forming part of the estate of the deceased, in relation to which they have been decerned executors. The defence to this practically is, that the fund in question was a gift or donation by the deceased to the defender for himself and others, and he explains this to mean that, in virtue of certain verbal communings or directions, he was to uplift the money and divide it in certain proportions among various parties, he himself to retain what remained over. It seems quite clear that this cannot be called a donation in the proper sense of that term. In order to constitute donation in circumstances like the present, it is necessary for the maintainer thereof to exclude the element of administration—and this doctrine has more than once been given effect to in the Supreme Court. In point of fact, unless this were so, it would be competent to make a verbal testament to any extent, under the mere cover of a donation. In the present case, not only is the element of administration not excluded, but it is directly founded upon by the defender, who by his own showing was not merely to receive the money but to administer it in terms of the intentions of the deceased, verbally expressed. If I am right in this view, he has no title to refuse payment of the consigned money to the officers duly appointed by law to administer the estate of the deceased. Of course if he or others have any claims which they can validly constitute against such officers, they will be in a position to make them, and insist for them in the proper form— Mackenzie v. Brodie, June 24, 1859, 21 D. 1048; Inglis v. Barstow, December 5, 1857, 20 D. 230; and Sharp v. Paton, June 21, 1883, Scot. Law Rep., vol. xx. p. 685.”

The pursuer appealed to the Court of Session, and argued—The evidence was sufficient to instruct a donation mortis causa to the defender, and to discharge the onus incumbent on him to prove it according to the rules for such donations formulated in the leading case of Morris v. Riddick, July 16, 1867, 5 Macph. 1036, and modified by subsequent decisions. Delivery was not necessary to such a donation as had now been fixed (after conflicting decisions in M'Cubbin's Executors v. Tait, Jan. 31, 1868, and Walls' Trustees, July 1, 1869, 7 Macph. 930) by Crosbie's Trustees v. Wright, May 28, 1880, 7 R. 823. It was therefore unnecessary to argue whether delivery of the pass-book was delivery of the sum in the bank or not. It was enough to prove from facts and circumstances the animus donandi on the part of the donor—the doctrine of Boss v. Mellis, December 7, 1871, 10 Macph. 197,

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on that point having been modified by later decisions — Thomson's Executors v. Thornton, June 8, 1882. 9 R. 911; M'Skimming v. Stenhouse, June 14, 1883, ante, p. 3. The directions to give small sums to other parties did not interfere with the animus donandi in favour of the defender; and there was no authority that a gift so conditioned was an attempt to make a will, as held by the Sheriff. Any question between these parties and the defender was not in the present case. The case of Sharp, relied upon by the pursuers, was one of conflicting evidence, and did not apply, for here there was no conflict of evidence.

The pursuers replied—The onus had not been overcome— Sharp v. Paton, supra; Durie v. Ross, July 8, 1871, 9 Macph. 969. The evidence of animus donandi from the occurrence of the pursuer's name in the pass-book failed, for his name was put there (as formerly Mary M'Naught's) merely because the deceased could not write. The defender's claim was vitiated by the quality of administration attached to the alleged gift, which made it in reality a trust, and that could not be constituted by parole.

At advising—