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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macdonald and Others v. Macdonald's Executor [1889] ScotLR 26_578 (11 June 1889) URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0578.html Cite as: [1889] SLR 26_578, [1889] ScotLR 26_578 |
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A deposited £286 in deposit-receipt in a bank in name of himself and B his brother, “to be drawn by them, or either or survivor,” and retained the deposit-receipt in his possession. B and his daughter deponed that ten days before his death A, believing himself to be dying, made a donation of the money to B, and delivered to him the deposit-receipt.
Held that donation had been proved on the evidence of the donee and his daughter, corroborated by the terms of the deposit-receipt, as indicating some intention on the part of the deceased to benefit B.
The late John Macdonald died in Edinburgh, aged about seventy, unmarried and intestate, on 22nd December 1887. His brother Alexander Macdonald, 29 Marchmont Road, Edinburgh, was decerned his executor-dative qua next-of-kin. He delayed giving up an inventory of the deceased's estate and expeding confirmation, as he declined to include in said estate a sum contained in a deposit-receipt left by his brother, which was in the following terms:—
“ British Linen Company Bank,
“£286,19s. 2d. stg. Inverness, 5th May 1887.
Received from Mr John Macdonald, Dochfour, and Mr Alexander Macdonald, his brother, to be drawn by them, or either, or survivor, Two hundred and eighty six pounds, 19/2 stg., which is this day placed to the credit of their deposit account with the British Linen Company.”
There was also a deposit-receipt of the same date in the following terms:—
Caledonian Banking Company, Limited,
£280, 11s. 4d. Inverness, 5th May 1887.
Received from Mr John Macdonald, Dochfour, and Mr Hugh Macdonald, Balmore, Abriachan, Two hundred and eighty pounds, 11/4 stg., repayable to either or survivor, which is placed to their credit on deposit-receipt with the Caledonian Banking Company, Limited.”
Hugh Macdonald therein mentioned was a brother of the deceased, and had died in April 1887. The money contained in that deposit-receipt admittedly formed part of the estate of the deceased. Besides the money in these two deposit-receipts the deceased left about £35.
Duncan Macdonald and the children of another brother, as the next-of-kin of the deceased, raised this action of count, reckoning, and payment against the executor in the Sheriff Court at Edinburgh, by which they sought to have the sum of £286, 19s. 2d. included in the estate of the deceased.
The defender averred—“The deposit-receipt for £286, 19s…. consisted of moneys belonging jointly to the deceased John Macdonald and the
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defender. It was the intention of John Macdonald that the whole of the contents of the said deposit-receipt should belong to and be the property of the defender in the event of his survivance. John Macdonald, some time before his death, delivered over to the defender the deposit-receipt as his sole property, and gifted the contents thereof, so far as belonging to him, to the defender, and the same is his sole and exclusive property.” At proof before the Sheriff the only witnesses examined for the defender were himself and his daughter. He deponed:—“My brother John came … to my house about the end of October 1887. He was in bad health at that time, and came to reside with me on that account to see if the change would do him good. … His health did not improve after he came down to Edinburgh; he got weaker, and died on 22nd December 1887. I recollect his taking an airing in a cab about ten days before his death. When he came into the house after the airing, he said to me that the doctor had told him he was not likely to get rid of his trouble, and he wished to settle matters. He opened his desk and took out a paper which he handed to me, and said, ‘That is for you, Sandy; that is for you wholly.’ [Shown deposit-receipt for £286, 19s. 2d., by the British Linen Bank, dated 5th May 1887.] That is the paper which my brother handed to me on that occasion…. When I got the deposit-receipt from him, I put it into my own trunk. I never gave it back to him again. It remained in my possession in the trunk until the Saturday night after the funeral.” The defender further deponed that he had from time to time handed various sums, amounting in all to about £100, to the deceased for deposit in bank. He believed that this money was included in the deposit-receipt in question. In cross-examination the defender repeated substantially his previous account of the alleged donation. He denied that he had expressed surprise to the pursuers that his brother had inserted his name in the deposit-receipt, and that he had displayed to them any other document than the receipt in question. He was charged by the deceased to look after his brother Duncan, who was weak mentally.
His daughter Margaret Macdonald, aged 30, deponed:—“My uncle died on 22nd December 1887. I recollect him going out for an airing in a cab about ten days before his death. When he came back I helped my father to bring him into the house. He said, ‘The doctor told me—and I am afraid he is right—that I won't get better.’ He then asked for his writing-desk, and went to it, saying, ‘As long as I am able, I would like to settle affairs if I can.’ He opened his desk and took out a deposit-receipt by the British Linen Bank, and handed it to my father. I am now shown the deposit-receipt. It was handed to me at the time, and I read it. When my uncle handed it to my father, he said, ‘Sandy, here take this; I give it to you wholly for yourself, and I hope that you will remember that Duncan has been my care all my life, and that you will always see to him, that he may never want.’ My father put the deposit-receipt into his pocket, and afterwards into his own box.”
The only witnesses examined for the pursuers were John Macdonald, aged 30, a nephew, and Maggie Macdonald, aged 35, a niece of the deceased.
They had been summoned to Edinburgh by the defender, but found their uncle dead when they arrived. Their evidence related to circumstances in the defender's house after they arrived, and especially after the funeral, and in some particulars their account of what then occurred, while consistent, differed from that given by the defender and his daughter.
On March 18th 1889 the Sheriff-Substitute ( Rutherfurd) found that the defender had failed to prove donation.
His note contained the following statements—“The Sheriff-Substitute thinks it right to say that the witness Margaret Macdonald, who is a woman thirty years of age, gave her evidence in apparently a very truthful manner. …
But, unfortunately for the defender, the case presents some features which are very unfavourable to his claim. It must be kept in view that the deceased died in the defender's house, at a distance from his friends and relatives, other than the family of the defender, who had uncontrolled access after his death to the repository in which he kept his papers. It would have been easy for him to have made an informal will, or to have left some written instructions with reference to the disposal of his property, but it is said that he died intestate, and no legal adviser was called in. Now, the pursuer John Macdonald and his sister have given an account of what passed subsequent to the funeral, which in several respects directly contradicts the statements in evidence of the defender and his daughter. They say that the defender took both the deposit-receipts out of his own box, whereas the defender says that he only had in his possession the one in dispute, and that the other was in the desk of the deceased. The pursuers also say that the defender expressed surprise at his name having been put in the deposit-receipt, and that he did not at first state that it had been given to him by his brother before his death. They also say that the defender told them that he (defender) had given his brother's gold watch to his daughter Mary (Bella), while the defender and his daughter allege that the deceased gave it to Mary as a present for nursing him; but she has not been examined as a witness… .
In the case of Ross v. Mellis, 1871, 10 Macph. 197, Lord Deas observed that in none of the cases in which effect had been given to the proof of donation was there any room for doubting the evidence. ‘Wherever the evidence was at all doubtful we have invariably refused to give effect to the alleged donation. In a case of this kind we must look to the whole circumstances. It is not a question as to the mere balance of evidence where there is no balance either way. The party alleging donation is bound to overcome the presumption against donation.’”
The defender appealed to the Court of Session, and argued—Donation had been proved. The history of the transaction given by the defender was corroborated by his daughter, and was in itself likely. The terms of the deposit-receipt, though they did not per se confer a title, indicated some purpose in the deceased's mind associated with his brother Alexander, when he
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deposited the money. There had been deliveryhere which made the case all the stronger— Crosbie's Trustees v. Wright, May 28, 1880, 7 R. 823 (Lord President); Blyth, &c. v. Curie, February 20, 1885, 12 R. 674; Connell's Trustees, July 16, 1886, 13 R. 1175 (Lord Shand, p. 1187). Some of the money at least had come from Alexander. The Sheriff-Substitute had placed too much weight upon the slight discrepancies in the accounts of what occurred after the funeral. To refuse the appeal would be equivalent to saying that the defender and his daughter had concocted the story to defraud the other relations, and had committed perjury. Argued for the pursuers and respondents—The judgment of the Sheriff-Substitute was right. The deposit-receipt per se conferred no title— Cuthill v. Burns, March 20, 1862, 24 D. 849; Watt's Trustees v. Mackenzie, July 1, 1869, 7 Macph. 930; Connell's Trustees, supra. There had not been sufficient evidence to overcome the strong presumption against donation. The only witnesses were the defender and his daughter, both interested parties, in whose house the deceased had died, and whose evidence, where it was capable of being tested, had been contradicted— Ross v. Mellis, December 7, 1871, 10 Macph. 197; Sharp v. Paton, June 21, 1883, 10 R. 1000. If the deposit-receipt was handed over at all, it was in trust for Duncan, and this as a verbal will was invalid— Thomson, &c. v. Dunlop, January 9, 1884, 11 R. 453. The argument of intention from the terms of the deposit-receipt here lost its force, because another deposit-receipt taken on the same day was in the names of the deceased and of a brother who was then to his knowledge already dead. Probably the bank suggested the two names for convenience in uplifting the money.
At advising—
Now, the question is, whether that deposit-receipt, which remained in the hands of John Macdonald, was or was not delivered by him as a donation to Alexander Macdonald, the person named in the body of the deposit-receipt. First consider the terms of the deposit-receipt itself. These do not in any way settle whose is the money in the deposit receipt, but they have a bearing upon that question. They bear that the money was received from those two persons, and that it was payable to either of them or the survivor, and it has been decided in the case of Crosbie's Trustees that the terms of a deposit—receipt are matter for consideration in determining the question whether there has been donation by one of the parties to the other. In Crosbie's case the deposit-receipt differed in terms from this one, and had been altered from time to time, and had been changed into its final form at a particular date. Here the terms do not seem to have been changed, but they are different from those used in the other deposit-receipt in the names of John Macdonald and his brother Hugh. Some purpose must have been intended to be served by the different terms of these two deposit-receipts. The case for the defender is that the sum contained in the British Linen Company Bank's deposit-receipt was made up from money belonging to both of them. He says that when he was visiting his brother it was put together, and put in the bank by his brother. It is said that that is not a likely thing to have happened in the circumstances. It is not more unlikely than that the deceased should take a receipt in the names of himself and Alexander if Alexander contributed nothing, especially as they did not live in the same place. There is no evidence to support the contention of the pursuers' counsel that the terms of the receipt had been suggested by the bank officials, and we must take it that the terms of the receipt were such as were desired by John Macdonald when he made the deposit.
The case of Crosbie's Trustees is of great importance, for it has settled that in such an inquiry as the present “the terms of the deposit-receipt are very important elements of evidence, because they indicate some purpose of the deceased when he took the deposit-receipt in these terms.”
Now, the deposit-receipt being in those terms, it is said to have been delivered by the one person named in it, and who had it in his possession, to the other person named in it, and that this took place when the former was in the immediate contemplation of death. The defender and his daughter distinctly concur in the account they give of this matter. They repeat on different occasions, not identically but substantially, the same words. True, there was added to the words of donation a desire that the defender should take good care of his brother Duncan, but having carefully looked into this matter I do not think that this was a condition attached to the donation. It was given with a pious request, not in trust for Duncan. The question comes to be, whether the defender's evidence commends itself to our judgment? I may say at once I believe it, and think that the daughter's evidence is confirmatory of it. It is said that there is contradictory evidence, and undoubtedly there is, but not as to what occurred at the time of the alleged donation, only with regard to what took place after the funeral between the defender and the other relatives.
The question in my judgment is, not whether there is contradictory evidence in this proof, but whether the contradictory evidence so shakes our faith in the evidence of the defenders as to produce doubt in our minds with regard to the donation. The donee is not to be put at the mercy of another interested party by mere contradiction on other matters. The contradictions to receive weight must be such as affect the evidence of donation. I believe the evidence of the defenders, and no substantial doubt has been produced in my mind by the evidence of the pursuers. The discrepancies as to what occurred after the funeral are just such as will occur where parties suspicious of each other are giving an account of what took place. They do not affect the bona fides of the defender and his daughter, and have
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I am accordingly for sustaining the appeal.
Now, what would have been the legal view in the absence of any evidence on either side? The defender is in possession and has the custody of the document; he holds it, his name is on it as creditor therein, he is the only creditor therein in the circumstances which have occurred. Is it of any legal significance that his name stands second, and not first? I think that absolutely immaterial. Therefore in the absence of all evidence I think Alexander, being the survivor and in possession, is in the same position as John would have been in if he had survived and kept possession of the receipt. But there is evidence, and the evidence must determine the question. It appears that John paid money into the bank, being accompanied by Alexander at the time, upon a deposit-receipt in the terms quoted, which he kept. Laying aside in the meantime the only evidence of where the money came from—which is that of Alexander, who says he contributed £100, and that the rest was out of John's pocket, and take it that it was John's wholly. He took the deposit-receipt in these terms, he alone was the creditor, and he was under no obligation to his brother Alexander. He might have got the money, he could have uplifted it and re-invested it, changing the terms of the receipt. All that he kept in his own power by keeping possession of the receipt. It is only upon evidence that I know he paid in the money, and how upon evidence does the receipt pass into Alexander's possession, in whose hands we find it now? The only evidence and the whole evidence upon that matter is this, that some days before John died he handed it to his brother saying, “That is for you, Sandy, wholly,” meaning thereby that Alexander was to be in lawful possession of it as creditor therein for his own use entirely. The evidence of Alexander and his daughter has every antecedent probability and likelihood, because the terms of the receipt signify an indication of John's to act as these witnesses say he acted. They signify this intention as clearly as if he had said to a friend, “I intend to give this deposit-receipt to Alexander when I feel my end approaching.” It was an expression in writing of intention, not binding upon him, but nevertheless a record of intention at the time of taking the deposit-receipt. It is not from law or upon decisions, but because the human mind cannot resist giving more credence to evidence of something having happened, which was likely to happen, and for which there was an antecedent probability, that we are more ready to believe a highly probable story such as this is. John might have changed his mind, but it was highly probable that he would act as he is alleged to have done.
On these grounds I am of opinion that the findings in fact in the Sheriff-Substitute's interlocutor should be altered, and that we should find that the appellant is in the lawful possession of this document as creditor therein on his own account and for his own behoof.
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The Court pronounced the following interlocutor:—
“Find in fact that the late John Macdonald delivered the deposit-receipt for £286, 19s. 2d., mentioned in the record, to the defender Alexander Macdonald, to be held by him for his the defender's own behoof: Find in law that the defender is in the lawful possession of the same as creditor therein, and that it does not form part of the estate of the said John Macdonald: Therefore recal the judgment of the Sheriff-Substitute appealed against,” &c.
Counsel for the Pursuers (Respondents)— A. S. D. Thomson. Agent— Alex. Ross, S.S.C.
Counsel for the Defender (Appellant)— Sym. Agent— David Milne, S.S.C.