Scottish Court of Session Decisions

This was an action at the instance of Mrs Elizabeth Dawson against Thomas M'Kenzie, hairdresser, 291 Paisley Road, Glasgow, as executor or vitious intromitter with the estate of the deceased Mrs Mary Jane M'Kenzie, mother of pursuer and defender, concluding for decree ordaining the latter to produce a full account of the whole of said executry estate that the amount of the share falling to pursuer as one of the next-of-kin of her mother might be ascertained, and for payment of said share.

The pursuer averred that her mother had died intestate at 291 Paisley Road, Glasgow, on 27th December 1890, survived by six children, including the pursuer and defender; that the estate of her mother at the time of her death consisted (1) of the furniture in the house No. 291 Paisley Road, and (2) of a sum of £240 contained in a deposit-receipt of the Clydesdale Bank in her name dated 12th December 1890; that the defender had taken possession of these effects without right or title; and in particular, a few hours after the death of his mother, had illegally obtained payment from the bank of the £240 contained in the above-mentioned deposit-receipt, and had re-deposited the same in his own name. She claimed one-sixth of the furniture and of the £240.

The defender in answer averred that on 16th December 1890 his mother had made

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him a donation of the deposit-receipt and the sum contained therein. He made no claim to the furniture.

A proof was allowed. The evidence showed that at the time of her death Mrs M'Kenzie was sixty-three years old. She was survived by four children besides the pursuer and defender, viz., Mrs Gebelmann, Mrs Pippin, and Alexander M'Kenzie, and another child who was resident in Australia. It was not suggested that any of Mrs M'Kenzie's children were in affluent circumstances, and Mrs Pippin was proved to be in receipt of parochial relief.

The defender and Mrs Gebelmann were the only persons said to have been present at the date of the alleged donation. The defender's account of the transaction, as given in his examination-in-chief, was as follows—“On Tuesday 16th December, when I came home for dinner about four o'clock, my mother told me that she had not been so well, and she asked me to have my dinner in the bedroom. After I had taken my dinner, she asked if I had enough money to pay the taxes, and I said that I still required £1. My mother then said she had a few pounds in the box which she would give me, and she told my sister Mrs Gebelmann to open the box and bring a pen and ink. She then put her mark on the deposit-receipt of 12th December 1890, asked me to sign it also, and handing the receipt to me said, ‘Now, that is yours.’ I took the deposit-receipt and placing it in the envelope returned it to the box, and my sister locked up the box again. I did not take the deposit-receipt out of the box again until the morning after the death, when I uplifted the money and re-deposited it in my own name.” The box referred to contained articles belonging to the defender and Mrs Gebelmann as well as to Mrs M'Kenzie. In his cross-examination the defender deponed—“When my mother handed the deposit-receipt to me on the 16th December she made me promise that I would look after Mrs Pippin. … My mother did not say that when I got her money I was to pay something out of it to support Mrs Pippin. (Q) What did she say?—(A) She said ‘You will look after Mrs Pippin.’ … (Q) After taking out the deposit-receipt in her own name on 12th December, when do you think your mother first conceived the notion of giving the contents to you?—(A) On the following Tuesday, 16th December. She then said that she had got off it all she would require. … The transaction of 16th December originated in my stating that I was short of £1.” Examined by the Court the defender deponed—“(Q) When your mother gave you that deposit-receipt, did she think she was never to be entitled to draw money from it any more?—(A) She said so. She said she would not require it any more, because she felt herself done. When my mother gave me the deposit-receipt she said she did not think she would get better.”

Mrs Gebelmann's account of the alleged donation was as follows—“My brother and I were brought into my mother's room about four o'clock in the afternoon. My mother was in bed at the time. My brother Tom had come up for his dinner, and my mother asked him to come into the room. My mother said to my brother Tom, had he paid the taxes? and he said he had paid them all but one, for which he wanted £1. He said he would pay it himself. My mother told me to bring her the little box in which she had her deposit-receipt. I did so, and she gave me £4 which she had borrowed from me. There were three deposit-receipts in the box—one belonging to myself for £100, another belonging to my brother for £100, and the third deposit-receipt was my mother's. I handed my mother her own deposit-receipt at her request. She then asked me to bring her pen and ink, which I did. She made a cross on the deposit-receipt, and then my brother and I signed it at her request. She then handed the deposit to my brother Tom, saying, ‘There, that's yours, as I have got all that I require of it, and I know you will look after your sister Jessie,’ meaning Mrs Pippin. My brother then put the deposit-receipt into the box along with the other two deposit-receipts. That box was the common family repository where all our valuables were kept. Cross-examined—(Q) When your mother said that Tom was to look after Mrs Pippin, what did you understand her to mean?—(A) She meant that my brother would never see my sister want anything. (Q) Did you understand her to mean by that that Tom was to give her her share of the money which she had in the deposit-receipt?—(A) No, she meant that he would never see Jessie want. (Q) Where was he to get the money to give to Jessie?—(A) He always worked for money, and she knew that he would help Jessie. She said that she did not mean him to give her any money out of the deposit-receipt. (Q) Why did your mother make that statement, that she did not mean that Tom was to give her anything out of the deposit-receipt?—(A) She said the money was Tom's. … My mother said that she gave the whole of the furniture to me. She did so at the same time as she gave Tom the deposit-receipt.” … The last statement was at variance with the evidence of the defender, who deponed—“My mother had also said that the furniture was to belong to my sister, Mrs Gebelmann, but that was some months before. She said nothing about the furniture at the time the deposit-receipt was handed over to me.”

Mrs Pippin deponed—“About a fortnight before she died my mother said that she felt very ill, and that she was going to give this deposit-receipt to the defender tonight. When I called on the following day I was told that she had given the deposit-receipt to the defender. … My mother had told me the day after she had given the deposit-receipt to the defender what she had done, and the defender told me himself afterwards.” This was the only evidence directly supporting the story of the defender, and it appeared that since the death of her husband in September

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1889 Mrs Pippin had been partly supported by the defender, and that since his mother's death he had promised to take her to live with him.

With regard to the state of Mrs M'Kenzie's health at the date of the alleged donation the evidence was not clear. It appeared that for the last eight years of her life she had suffered from asthma; that in December 1890 she was suffering from an attack of this malady, and that she ultimately succumbed to this attack, but there was very little evidence to suggest that on 16th December 1890 she was looked upon by those around her as in a critical state, and the only evidence to suggest that she thought herself dying was that of the defender and Mrs Pippin, already quoted.

The evidence showed that Mrs M'Kenzie could not write, and that when she desired to draw money from the bank her custom was to put a cross on the back of the deposit-receipt. The cross was then attested by two witnesses, usually two of her children, one of whom took the receipt to the bank, drew the money required, and took out a fresh deposit-receipt in her favour for the balance.

The defender stated as the reason of the alleged donation in his favour that he had maintained his parents for years prior to their respective deaths. On this point he deponed—“My father died on 13th December 1882. He was residing with me at that time, and had done so for six years previous to his death. During all that time I had to maintain my father as he was unable to do any work. Besides my father, there were residing with me in the house my sister Martha, now Mrs Gebelmann, my mother, and my niece Agnes Duncan…. My father left no money…. After my father's death I kept my mother and my sister Martha and my niece Agnes Duncan until they were married…. I got no help from any of my brothers or sisters towards the support of my father and my mother…. My mother never helped to pay the household expenses.”

Mrs Gebelmann and Mrs Pippin supported the defender's assertion that the expenses of the house in which he and his mother lived had been entirely borne by him.

On the other hand, it appeared that the £240 in question was the balance of a legacy of £490 received by Mrs M'Kenzie in the year 1883. That sum had been lodged on deposit-receipt in her name with the Clydesdale Bank, Paisley Road, and from time to time Mrs M'Kenzie had drawn various sums from the bank, with the result that the amount on deposit-receipt was reduced on 19th November 1888 to £340, on 26th November 1889 to £280, and on 12th December 1890 to £240. The defender explained the amount of his mother's expenditure by saying that she had been in the habit of spending ten or twelve weeks every summer at Carrickfergus, in Ireland, or else down the Clyde; that on these occasions she took several of the family with her, and defrayed all expenses, and that this was “what she did with the money.” He admitted, however, that at Carrickfergus she used to stay with a cousin of her own, and that of £20 uplifted by his mother on 12th December 1890 he had received £10 to pay “taxes and some accounts,” and failed to explain why, if his mother's expenditure had been caused solely by her visits in summer to Ireland and the Clyde, a sum of £20 had been drawn from the bank on 1st February 1888, and why money had been uplifted on ten different occasions between that date and 2nd July 1890.

The defender alleged that his mother had frequently expressed it to be her intention that he should get all her money, and this statement was corroborated by Mrs Gebelmann and her husband, Mrs Pippin, and Alexander M'Kenzie, the defender's brother and partner in business, and his wife.

Three independent witnesses, friends of the deceased—Mrs Forrester, Mrs Brash, and Mrs Crawford—were also examined for the defender on this point. Mrs Forrester and Mrs Brash both stated that they had frequently heard Mrs M'Kenzie say that she would leave what she had to the defender, and each referred specially to the last occasion on which they had heard her make a statement to that effect—the occasion spoken to by Mrs Forrester being about three weeks, and that spoken to by Mrs Brash being about four weeks before Mrs M'Kenzie's death. Mrs Crawford deponed—“About fifteen months ago Mrs M'Kenzie spoke to me decidedly about her money affairs. She said—‘Tom, you know, has always been a good son to me, and I am going to tell you that I have left all to him. At different times Mrs M'Kenzie has made similar statements to me about her affairs.”

The defender also stated that on one occasion when his mother was ill, about a year before her death, she had sent Mrs Pippin to summon him in order that she might give him the deposit-receipt, but that he had not treated the summons seriously, as he did not think his mother's illness to be dangerous. Mrs Pippin corroborated the defender on this point.

The defender also stated that on one occasion, when advised to make her will by Mr Wilson, a writer, Mrs M'Kenzie had said that “there would be no will with her; what she had she would give me in my hand,” and it was elicited in cross-examination that he had had some conversation with Mr Wilson on this matter. He deponed—“I had been told by Mr Wilson, after my mother would not make a testament, that it would be necessary to get delivery of the deposit-receipt, and that is the reason why I put it into the box, and thought no more about it after it was endorsed. I thought that after the deposit-receipt was given me nothing more was required.” Mr Wilson was not called as a witness.

The residue account prepared by Mr Wilson, and signed by the defender, contained the following entry—“An immediate gift inter vivos on 12th December 1890 of the deposit-receipt after mentioned

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to the deponent;” and in a letter to the pursuer's agent dated 14th January 1891 Mr Wilson wrote—“The amount of the deposit-receipt was £240, which was handed over to my client on the 14th December last in the presence of Mrs Pippin.”

The evidence adduced for the pursuer was of little importance, and the case turned on the question whether or not the defender had adduced sufficient evidence to overcome the presumption against donation.

On 21st August 1891 the Lord Ordinary ( Kincairney) pronounced this interlocutor:—“Finds (1) that Mrs M'Kenzie, mother of the pursuer and defender, died on 27th December 1890; (2) that on 16th December 1890 she made a donation inter vivos to the defender of a bank deposit-receipt in her favour for £240, and of the said £240 contained therein: Finds that the defender has not intromitted with any other part of the estate of the deceased: Therefore assoilzies the defender from the conclusions of the summons and decerns: Finds him entitled to expenses, &c.

“ Opinion.—[ After stating the circumstances in which the case was raised]—A proof has now been taken, in which the defender led. I do not think that the evidence adduced by him has been met to any serious extent by counter evidence; and what the defender has to overcome is not so much the pursuer's counter evidence as the very strong presumption against the donation which he avers.

There is always a strong presumption against donation, either inter vivos or mortis causa.

In this particular case the presumption is exceptionally strong. What is averred is not donation mortis causa but a donation inter vivos and absolute, and there is authority for the proposition that a more complete proof is required to establish the latter than the former— Sharp v. Paton, June 27, 1883, 10 R. 1000, per Lord Deas, 1008. Further, what is said to have been bestowed was practically Mrs M'Kenzie's whole estate. The gift would leave her penniless and dependent on her son; further, she had five other children with legal claim to legitim on her death, a right not readily or easily defeated, and not in all cases liable to be defeated; and lastly, the donation is alleged to have been made by a blank endorsation of a deposit-receipt—Mrs M'Kenzie's endorsation having been made by a cross on the back of the deposit-receipt (she being unable to write), attested by the defender and by his sister Mrs Gebelmann.

The defender's case therefore requires careful examination, and it is not without hesitation that I have ultimately come to the conclusion that it has been made out.

The facts are shortly these—Mrs M'Kenzie some years ago received a legacy of considerable amount for a person in her position, and at the same time her children received smaller legacies.

These were deposited in bank on deposit-receipts, and all deposit-receipts were kept together in a box of which Mrs M'Kenzie kept the key.

Mrs M'Kenzie was in the custom of drawing money from the bank from time to time; she did so by making a cross on the back of the deposit-receipt, which was attested by two witnesses, generally or always her children, one of whom took the receipt to the bank, drew the money required, and got a new deposit-receipt in favour of Mrs M'Kenzie for the balance.

In that way the sum in bank gradually diminished.

On 19th November 1888 it amounted to £340, on 26th November 1889 to £280, and on 12th December 1890, to £240; so that she had spent £100 the last two years of her life, and £40 in the year before she died. How she disposed of these sums does not clearly appear.

Mrs M'Kenzie's husband had died in 1882.

The defender depones that for some years previously his father had resided with and been maintained by him; that his mother had continued to reside with him, and that he had maintained her, and also his sister Martha, afterwards Mrs Gebelmann, and his niece Agnes Duncan, until they were married.

It would rather appear, however, that Mrs M'Kenzie must have contributed either to the expense of the housekeeping or of the business.

Mrs M'Kenzie had four other children, one resident in Melbourne, and the others had been married.

The defender depones that his mother frequently expressed her intention that he should have her money, and her desire to avoid, if possible, disputes about it after her death.

It appears to have been generally understood in the family that the defender should have his mother's money, and to have been acquiesced in as natural, I suppose, because she had lived in his house.

It happened that not long before her death Mrs M'Kenzie had occasion to consult Mr Wilson, a lawyer, and that he, noticing the frail state of her health, had advised the defender that she ought to make her will. The defender repeated this advice to his mother, and he depones that she replied that there would be no testament with her; what she had she would give into his, the defender's, hand. On another occasion Mr Wilson, when this was mentioned to him, advised the defender that it would be necessary that he should get delivery of the deposit-receipt.

One would have wished to know the precise advice which Mr Wilson gave, but that gentleman has not been examined.

It appears that Mrs M'Kenzie had been in failing health for several years, and that latterly she never left her house during winter. She suffered from asthma, and was much indisposed. The evidence is not so clear as might be wished about the state of her health shortly before her death.

She died on 27th December 1890 at the age of sixty-three. On 12th December she drew £20 from bank, and a new deposit-receipt

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for £240 in her favour was made out. The donation is said to have been made on 16th December, when she seems to have been seriously ill, though not in a condition materially worse than on the 12th.

The defender depones that on that day she asked him to come to her room, that her daughter Mrs Gebelmann was present, and that Mrs M'Kenzie desired Mrs Gebelmann to bring her the deposit-receipt and pen and ink, and that she then made her cross on the deposit-receipt by way of endorsation, and that the defender wrote his name on it as a witness.

She then handed it to him and said, ‘Now, that is yours.’ He then replaced the deposit-receipt in the box, which was locked by Mrs Gebelmann, and never touched it again until he took it out of the box after his mother's death and cashed it at the bank without informing the clerk at the bank that his mother had died. He says, on cross-examination, that his mother made him promise to look after his sister Mrs Pippin, who seems to have been very poor, and was indeed in receipt of parochial relief.

The pursuer's counsel endeavoured to establish discrepancies between the defender's evidence and that of Mrs Gebelmann, but I think her evidence substantially corroborates her brother's on all material points. She mentions what he does not, that she also signed the deposit-receipt as a witness to her mother's endorsation.

The defender and Mrs Gebelmann also depone that they understood that the gift to the defender was absolute.

Mrs Pippin depones that her mother had told her of her intention to give the defender the deposit-receipt, and she was afterwards told (by the defender I suppose) that she had done so.

That, I think, is the whole of the direct evidence on the point.

It is not, and indeed hardly could be contradicted. I have no right to hold that these witnesses are perjured, and I can find no solid reason to doubt their substantial veracity. It appears to me to be sufficiently, though not perhaps superabundantly, proved that on 16th December Mrs M'Kenzie had the deposit-receipt taken out of its box and brought to her for no other reason than that she might endorse it and give it to the defender. She had clearly no need to draw the money at the time, and if the occurrence took place at all, that was her only intelligible object.

I therefore think it proved that she made a donation of the deposit-receipt and its contents to the defender.

But the question of real difficulty remains, was this donation intended to be an absolute donation or only a donation mortis causa? Was it meant to be irrevocable or not?

The defender, Mrs Gebelmann, and Mrs Pippin deponed that they understood that it was absolute and irrevocable.

Mrs M'Kenzie died about a fortnight afterwards, and nothing that occurred after he 16th December throws any light on the

It is no doubt, generally speaking antecedently very unlikely that one should make an absolute gift of her whole property, and often an assertion to that effect might seem so incredible as to be almost incapable of proof. Nevertheless, if it be considered that Mrs M'Kenzie had lived in family with her son probably during all his life, and may have had the most ample reason to feel an absolute reliance on his filial affection, she may have done what the defender says she did. It is probably the case that what she desired was to secure that he should have the money after her death, but she may very probably have thought that the best way to secure that, was to give it to him during her life, and the notion of a donation mortis causa is probably too complicated and artificial to be plausibly ascribed to her.

I have certainly difficulty on the point, but I am not prepared to reject the defender's evidence.

The indirect evidence, at least the balance of it, is to the effect that Mrs M'Kenzie and the defender lived on cordial terms, that she entertained much affection for him, and received in return corresponding attention. It also shows that she had a fixed purpose that he should have her money, but the impression of the witnesses was that the defender was to get her money after her death and not during her life.

It is in favour of the defender's case that his statement that his mother had given him her money did not surprise the other members of the family except the pursuer, is believed by them, and contentedly acquiesced in. This is even the case with the defender's brother Alexander M'Kenzie, who was called as a witness by the pursuer, but whose evidence is really strongly for the defender, and I am not able to say that any undue means have been used to bring about this state of feeling.

It was argued for the pursuer that the gift, supposing it made, was not in any view an absolute donation, but was burdened with an obligation to support the defender's sister Mrs Pippin, and was really of the nature of a trust, and was, if that were so, wholly ineffectual. The case of Thomson v. Dunlop, January 23, 1884, 11 R. 453, seems to justify that position. But I am of opinion that the facts of this case do not raise the point, because assuming that there was inter vivos donation, I do not think that it can be held that any legal obligation to support Mrs Pippin was imposed on the defender. I think rather that she was commended to his care with that confidence which the gift to him, supposing it made, so amply demonstrates. I think it cannot be represented that the defender was not a donee but a trustee.

It is proper to notice that no question as to the effect of this donation, presuming it to have been made, has been raised or decided.

I think there is no other question properly raised in the case but this about the £240. Something is said in the proof about the furniture, but with that the defender appears to have no concern.”

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The pursuer reclaimed, and argued—There was a strong presumption against donation, and in the case of a donatio inter vivos the presumption was even stronger than in that of a donatio mortis causa. Here the evidence in favour of donation was insufficient to overcome the presumption— Ross v. Mellis, December 7, 1871, 10 Macph. 197. Such direct evidence as there was in favour of donation was that of the donee or person subject to his influence, and in the absence of independent evidence the alleged donation could not be upheld— Sharp v. Paton, &c., June 21, 1883, 10 R. 1000; Gribson v. Hutcheson, July 5, 1872, 10 Macph. 923; Crosbie's Trustees, May 28, 1880, 7 R. 823. Assuming the gift to have been made out, it was made in part subject to a trust in favour of Mrs Pippin, and was thereby rendered of no effect— Thomson, &c. v. Dunlop, January 23, 1884, 11 R. 453.

Argued for the defender—This was not a case where the question was on which side the balance of evidence lay. The evidence was all on one side, and the sole question was whether it was sufficiently strong to overcome the presumption against donation. It was proved that the defender's mother had for years intended that he should get all her money, and a satisfactory reason for her entertaining this intention was made out. The animus donandi being thus proved, the direct evidence in favour of an inter vivos donation was sufficiently strong— Macdonald v. Macdonald, June 14, 1889, 16 R. 758; Blyth, &c. v. Curie, February 20, 1885, 12 R. 674. If the Court were of opinion that an inter vivos donation had not been made out, the defender could fall back on a donatio mortis causa, for it was not necessary to the validity of such a gift that it should be made in immediate prospect of death— Blyth, &c. v. Curie, supra.

At advising—