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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nish v. Nish's Executor [1895] ScotLR 32_225 (17 January 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0225.html Cite as: [1895] ScotLR 32_225, [1895] SLR 32_225 |
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Page: 225↓
Sheriff-Court at Edinburgh.
Evidence which was held insufficient to establish that moneys paid by a wife on her husband's behalf during marriage had been advanced out of her separate estate, and were debts due by the husband to the wife at the date of his death.
Mrs Christina Nish raised this action in the Sheriff Court at Edinburgh, in January 1894, against the executor of her deceased husband, for recovery, inter alia, of certain small sums of money which she alleged had been paid by her out of her own estate during the marriage in satisfaction of debts due by her husband.
Proof was allowed. It appeared that Mr and Mrs Nish were married on 20th September 1883. Mr Nish died in October 1892. The pursuer deponed that the sums for which she sued had been paid by her out of her own estate. They had been paid respectively in 1885, 1888, and 1890, in satisfaction of (1) a shorthand writer's account incurred by her husband, who was a solicitor, in the course of his practice; (2) the interest due on a small loan obtained by her husband on the security of real estate belonging to him ; and (3) legal expenses incurred by her husband in connection with the mortgage. She had never asked repayment during her husband's life. She expected that her husband would leave her his whole estate. In corroboration of her claim pursuer produced receipts for the said alleged payments made by her on her husband's behalf. The receipts bore that the sums paid had been received from her.
Upon July 24th 1894 the Sheriff-Substitute (
Rutherfurd ) found in fact and in law that the pursuer had failed to prove that the sums sued for were “debts due to her by her husband at the time of his death,” and therefore dismissed the action.On appeal, the Sheriff (
Blair ) recalled this interlocutor, and decerned against the defender for payment of the sums sued for.
Page: 226↓
The defender appealed, and argued—The defender had only her own evidence to show that she had paid the sums sued for out of her own estate, and that was not sufficient proof to rebut the presumption that if a wife advanced money it was for the use of the spouses, and not as a creditor. The long delay in bringing the action was also against the pursuer's claim as good— Annand's Trustees v. Annand, February 6, 1869, 7 Macph. 526; Fairbairn v. Fairbairn, March 18, 1868, 6 Macph. 640 ; Hutchison v. Hutchison's Trustees, June 10, 1842, 4 D. 1399; February 1, 1843, 5 D. 469; Tennent v. Tennent's Executor, June 28, 1889, 16 R. 876; Edward v. Cheyne, March 12, 1888, 15 R. (H. of L.) 37. The respondent argued—The pursuer was entitled to have a proof prout de jure in support of her averments, and had proved that she had paid the sums sued for out of her own estate. As regarded the delay in bringing the action, it was satisfactorily accounted for by the pursuer's expectation that she was to succeed to her husband's whole estate. It was proved that the money was paid to the various persons who claimed it as creditors, and the wife took the receipts in her own name, and that raised a presumption that the wife intended to make herself the creditor of the husband—Dickson on Evidence, p. 190.
At advising—
Lord Justice-Clerk—As regards the alleged advances made by the pursuer to her husband after marriage, the burden lies upon the pursuer to prove that she had advanced these sums to her now deceased husband out of her own estate, and that they had not been repaid by him, and I do not think that the evidence she has brought forward is sufficient to establish these two points. It is true that she produces receipts for money paid, taken in her own name, which might indicate that she had advanced the sums stated in these receipts on behalf of her husband, but then she can produce no evidence in support of these receipts except her own statement.
It is true that the Sheriff-Substitute states that he does not consider the pursuer to be an untruthful witness, but the real question is always whether the pursuer has been able to bring forward such an amount of proof that the Court can hold it to be sufficient, and I do not think the pursuer in this case has done so. I therefore think the Sheriff-Substitute is right in his views upon this part of the case.
The Court recalled the interlocutor dated 20th November 1894: Found in fact and in law, in terms of the findings in fact and in law of the interlocutor of the Sheriff-Substitute, dated 24th July 1894: And assoilzied the defender from the conclusions of the action, &c.
Counsel for the Pursuer— Macfarlane— W. Thomson. Agent— Thomas M'Naught, S.S.C.
Counsel for the Defender — Dundas — Millar. Agent— John Forgan, Solicitor.
