Scottish Court of Session Decisions

This was a competition for a sum of £281, 8s., being the balance due on a deposit account kept at the National Bank by the late Matthew Young, formerly of Belfast, Victoria, and afterwards residing at 4 Clerk Street, Edinburgh, where he died on 5th February 1863. Mr Young left a will executed by him in Victoria, and the fund in medio was claimed by his executors nominate as part of his estate. It was also claimed by Misses Elizabeth and Mary Bryce, in whose house the deceased boarded for some time prior to his death, and to the latter of whom it was alleged he was engaged to be married. The ground upon which their claim was rested was that the deceased was owing them for board and advances made on his account a sum of £155, 7s. 2 1 2d.; and that on the day before his death he filled up and delivered to Miss Elizabeth Bryce a cheque on his bank account for the sum of £321, 8s., saying at the time of delivering the cheque that she was to pay herself and her sister out of the contents, and that they were to retain the surplus for behoof of themselves. The cheque was presented at the bank on the following day after Mr Young's death, when payment was refused, in respect it was an overdraft; and the bank having in this way come to hear of Mr Young's death, this action was raised. During its dependence Miss Elizabeth Bryce has died, and the claim is now insisted in by her sister, as her executrix, and also for her own behoof.

Lord Jerviswoode reported the case on issues in February 1865, and a discussion thereafter took place, the deceased's executors maintaining that the averments of Miss Bryce amounted to donation, which could not be proved by parole evidence; and Miss Bryce, on the other hand, maintaining that the deceased having granted an order in her sister's favour on his bank account, she was entitled to payment of it even after his death. The Court allowed a proof before answer, and appointed Miss Bryce to begin by leading her proof.

The evidence led was somewhat contradictory. The leading witnesses were, on the one side, Miss Bryce herself, and on the other the deceased's father, Robert Young, who had an interest in his son's succession under his will, to the extent of one-fifth, Miss Bryce, after describing minutely all that passed when the cheque was written out and signed, deponed, that just before it was done the deceased requested his father to leave the room, and that he went into the kitchen; that she afterwards told the father that his son had written out the cheque, and that he, having asked to see it, she got it and showed it to him, when he remarked, “I am very glad Matthew has minded you two girls, for you well deserved it,” and urged her to go to bank at once and get it cashed. Robert Young, on the other hand, deponed that on the day before his son's death, when he was supposed to be dying, he called at the house and asked Mary Bryce to get his son to write out a cheque, which was to be drawn out in his own favour, saying that if this was done he would lift the money; that Mary Bryce said nothing, but went away to get the cheque, and that she returned saying that the deceased had begun to write out the cheque, but that he could not finish it. He said she did not show him any cheque, but after his son's death she told him that she had been to the bank for payment of a cheque, and that the bank had refused to pay it, saying it was a forgery. A friend of Robert Young deponed that he had suggested that the father should get a cheque from his son, as there would be expenses to pay after the death, and legacy duty would be saved.

There was also contradictory evidence as to Miss Bryce's allegation that she was engaged to be married to the deceased. She said that she became acquainted with him betwixt 1847 and 1849, when he courted her, and afterwards went to Jamaica, and from that to Australia; that he returned from Australia about seven years ago, when she and her sister, their father having died, kept lodgings; that he lived as a lodger with them for four or five months and then returned to Australia; that before leaving he wished her to marry him, but it was arranged that he should return in five years and marry her; and that he returned in 1862 as promised, but that the marrriage was delayed as her sister was delicate and he was in bad health. Several shopkeepers spoke to their belief that Miss Bryce and the deceased were to be married, and a Mrs Miller deponed that the deceased had once asked her, referring to Miss Bryce, to drink “the intended Mrs Young's health.” On the other hand, the deceased's father and sister both deponed that they heard him say in Miss Bryce's presence that he would never marry anyone. It appeared that when he required to draw money from the bank Miss Bryce was in the practice of going with him and going into the bank for the money, he waiting outside until she got it.

The parties having been again heard on the case, and the import of the proof, judgment was given to-day.

The court preferred Miss Bryce to the fund, and repelled the claim of the executors with expenses.