Scottish Court of Session Decisions

This was an action at the instance of Mrs Helen M'Dougall or Gibson—as executrix nominated by the late William Hutchison, India Place, Edinburgh, who died on 20th August 1870, in a trust-disposition and settlement executed by him on 28th July 1866—and her husband, against Mrs Jean Graham or Hutchison, widow of the said William Hutchison, to have it found that all sums of money deposited in bank in name of the said William Hutchison and the defender, or either of them, prior to the death of William Hutchison, form part of his executry. There were also conclusions of count, reckoning, and payment.

There were two sums in dispute between the parties—1st. A sum of £185, which had been uplifted by William Hutchison about five months before his death, and which the defender alleged he had gifted to her; 2d, A sum of £235, deposited in bank in the defender's maiden name, which the pursuer claimed as part of William Hutchison's executry, but as to which the defender alleged that her husband had effectually renounced his right of property in her favour.

The Lord Ordinary ( Gifford) allowed a proof, the import of which was as follows:—

It was clearly proved that the sum of £235, which stood in Mrs Hutchison's maiden name, and which was the proceeds of her own industry, was never uplifted by Mr Hutchison, and for nearly twenty years he allowed his wife to uplift and redeposit it as she pleased. The jus mariti was not, however, excluded by any deed.

On 28th July 1866, Mr Hutchison executed a settlement, by which he gave to his wife, the defender, the liferent of his whole estate, and the fee

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to the pursuer, who was then his son's widow, and appointed the latter his sole executrix. He had then no children or other descendants living.

Mr David Hunter, S.S.C., deponed—“I am agent for the pursuer. In July 1866 I was asked by the late Mr Hutchison, news-agent, to prepare a settlement for him; and I had a meeting with him on the subject in the back room of Mr M'Dongall's shop, No. 8 India Place. Mr M'Dougall was present, and also Mrs Gibson, Mrs Aitchison, and old Mrs M'Dougall. Mr Hutchison told me on that occasion that he wished his settlement made to convey his whole property to Mrs Gibson. I asked him whether he did not intend to leave something to his wife, and he said she had money of her own deposited in bank. I asked him how it was deposited, and he said it was simply on bills, as he had called them. On making some more inquiry I found it was on deposit-receipts, and I told him that money would belong to him in virtue of his husband right, and that it would be carried by the will. I told him further, that if he did that, it would not be behaving right to his wife, and I advised him to give her a liferent of the whole. That was accordingly done.”

Evidence substantially to the same effect was given by the pursuer and other persons present at the meeting, called as witnesses for the pursuer.

After this deed was made, the pursuer entered into a second marriage with her present husband Mr Gibson. Disputes arose between her and Mr Hutchison, and about Whitsunday 1868 Mr Hutchison instructed Mr Laurie to prepare a new settlement entirely in favour of his wife.

Mr Laurie's evidence was as follows:—“I am an accountant and cashier to Messrs Wortherspoon & Mack. . . . When he (Mr Hutchison) instructed me to prepare that deed (the new settlement), I asked him whether the proceeds of the shop were in his own name, and he said they were. I then asked him if his wife had got any money, and he said she had a little. I did not ask him the amount, as I thought that would be impertinent; but I said, How does it stand? and he said it was in her own name. I told him that the deed would, therefore, require to be a mutual deed between him and his wife, and I framed the draft on that footing, and sent it to him in November 1868. Hutchison said to me that he had never interfered with his wife's money from the time they were married. He also said she was the party who always went to the bank and dealt with it, getting it taken out herself, and putting it in. He said he did not wish to interfere with it, that she had worked hard for it, and had been a long time in business both before and after they were married. The draft was prepared in terms of Mr Hutchison's instructions to me. He returned it to me a considerable time afterwards, and told me it had been approved of both by his wife and him. It must have been far on in 1869 before he returned it, because the deed, as it was extended, bears date in 1869 . . . About the beginning of March 1870 Mr Hutchison brought back the settlement to me signed. I saw his name at it, and I asked him how it had been done, and when he told me I said to him that it would not do. He seemed to feel very much disappointed about that, and I said, ‘if you and your wife cannot put your names to that deed, the better way would be for you to go to a notary-public, and he would do it for you.’ He said that would be more expense, and asked what it would cost. I said perhaps £1 or 30s. or £2, and he demurred at that very much, and almost said he would not do it. Seeing that, I said, ‘if you wish not to incur the expense of that way of doing it, then the better way would be for you to take the money out of the bank in your own name and give it to your wife as a present, and that would save all further trouble and annoyance about it.’ I told him that would put his wife safe. I told him fully about the effect of handing over the money as a present to his wife. I said it was a legal mode of transferring his part of the estate to her, and that it would save all trouble and annoyance about signing the will. He spoke about the money that was in bank in his wife's name, and said it was all safe because it was in her maiden name. By that I understood him to mean that nobody could touch it except herself. I met him one day afterwards casually at the railway station when he was going home, and he told me he had uplifted the money as I had advised him.

James Nicoll, examined.—I am a grocer at Newbigging. I have been there nearly four years. I knew Mr and Mrs Hutchison. I remember Mr Hutchison coming down to my shop one day with a document. [Shown No. 20.]—That is it. I think that would be about the end of February or beginning of March (1870). He was then complaining. I suppose he brought the document to me because we were a little acquainted, and he was in the habit of coming into my shop now and again. He said he had got a paper here from Mr Laurie, Edinburgh, which he wished to put his name to, if I would sign as a witness. I agreed to do so, and sent for Mr Andrew Smart, baker, whose shop was almost next door to mine, and he came in. I read over the document aloud, and Mr Hutchison said it was all right, and then put his name to it. I assisted him. He was complaining of his eyesight at the time. He said to me that he wished the longest liver to get all. When I read the clause revoking previous deeds, he said that was what he was intending, and the way in which he wanted it drawn out. So far as I recollect, I wrote his name while he held the pen, and he afterwards made the cross himself at the end. Mr Smart and I signed as witnesses. Mrs Hutchison came down, not that day, but some time afterwards—I cannot say how long. She did not come that day because she was unwell. When she came, Mr Smart was there also, and I read over the deed to her in the same way as before. She also signed it, with assistance.”

Mrs Jean Graham or Hutchison, the defender.—“My husband went up to Edinburgh, and uplifted the money in the bank. I think that was sometime in March (1870). He brought the money (£185) with him to Newbigging. He took it out of his pocket, and put it into my hand, and said, ‘Tak’ that as a gift, for thae devils M'Dougalls will be down upon you whatever may befal me.’ He was then in very bad health, his back was bad.

. . . . My husband died on a Saturday morning. On the previous afternoon he said to me, ‘Nobody shall touch that money that you earned hard, for it is your own money.’ He did not say anything more about my own money. These were the last words he said. He was looking for death at the time he said that. There was no one present at the time but himself and me. There was no one present when he gave me the £185, but he said he would not have taken the trouble of going in for it if he had not been wanting to give it to me.”

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The deposit-receipt for £185 was produced, bearing to have been paid by the bank on 18th March 1870.

The Lord Ordinary thereafter pronounced the following interlocutor:—

“Edinburgh, 27 th February 1872. . . . Finds it sufficiently instructed in point of fact that the late William Hutchison, the husband of the defender, some time before his death, did make over in gift and donation to the defender, his then wife, a sum of £185 or thereby, which he uplifted from the bank in or about March 1870; and finds that the donation or gift of this sum by the said William Hutchison to the defender stood unrecalled and unrevoked at the death of the said William Hutchison, which took place in or about August 1870: Finds it farther sufficiently instructed in point of fact that the said deceased William Hutchison renounced in favour of the defender, his wife, and gifted and made over to her all right competent to him in a sum of £235 or thereby, deposited in the Bank of Scotland, Edinburgh, on deposit-receipt dated 9th May 1870, in name of Miss Jane Graham, 13 India Place, that being the maiden name of the defender, his wife; and finds that the gift or donation of this sum by the said William Hutchison, or of all right competent to him therein, stood unrecalled and unrevoked at the death of the said William Hutchison: Therefore, and in regard to both the sums above-mentioned, assoilzies the defender from the declaratory conclusion of the action, and decerns: Quoad ultra appoints the cause to be enrolled, that any further procedure may take place under the petitory conclusions of the action, if such procedure is competent or necessary: Finds the defender entitled to the expenses of process up to this date.

Note..…These questions are (1) Whether a sum of £185, which stood deposited in bank in name of the late William Hutchison, and which was uplifted by him in March 1870, formed part of his estate at the date of his death, or whether it had been effectually gifted by him to his wife; and (2) whether a sum of £235, which stood deposited in the maiden name of the wife, was or was not the property of the husband at the time of his death, or whether that sum also had not been effectually renounced and made over to the wife.

In point of fact the wife bad the absolute possession and control of both sums at the date of her husband's death, and in the Lord Ordinary's view it is a pure question of fact whether the monies at the date of the death—that is, at the date of the dissolution of the marriage—did or did not belong to the husband, or whether they or either of them had or had not been gifted or made over to the wife.

Probably the presumption of law may be taken to be that both sums were the property of the husband. There was no contract of marriage between the spouses, either antenuptial or postnuptial. There is no averment of any deed either renouncing or excluding the husband's jus mariti, and if there be no evidence to the contrary, the Lord Ordinary would feel himself bound to hold that both sums fell under the jus mariti, and were in law the property of the husband at the time of his death.

It would be no answer to this to show, as has been done in the present case, that one of the two sums formed the proper and separate earnings of the wife, and that the same had been accumulated by her, at least to a considerable extent, before marriage. The wife's moveable property, whether acquired by her before marriage or during its subsistence, falls under the husband's jus mariti, and must be dealt with as his estate where there is no effectual provision to the contrary. All this is quite clear, and was conceded in argument on both sides of the bar.

But then it is equally clear that a husband may effectually make donations or gifts to his wife, and although all such gifts are in their nature revocable, still, if the husband dies without revocation, the gift will receive effect. It was urged that there is a legal presumption against such donations, and that at all events they cannot be proved to any extent by the testimony of the wife herself. This proposition, however, seems to be broad, for although it is true in one sense that there is a presumption against donation when there is room for any other contract, and the maxim probably applies donatio nunquam presumitur, still there is no special presumption against a husband making a donation to his wife, but rather in many cases a likelihood that he will do so, and in all cases the question is one of evidence, and the whole evidence and the whole circumstances must be taken into account.

Nor is there any difficulty in the present case about the competency of parole evidence. What is to be proved is not an obligation to give, or an agreement to give, but a completed donation, the full possession of the thing said to be gifted being undoubtedly with the alleged donee. The Lord Ordinary sees no ground for holding that in such a case the proof of donation must be limited to writ or oath. On the contrary, in all such cases he holds that donation may be proved prout de jure.

So standing the question, the Lord Ordinary thinks that in the present case donation unrevoked has been sufficiently made out by the defender. Undoubtedly the proof is somewhat narrow, and it may be said the defender has barely made out her case. Still the Lord Ordinary thinks there is enough, and he is satisfied that the defender's claim is in accordance with the intentions of her late husband and the equities of the case.

The two sums stand in some respects in different positions, but in great part the evidence is applicable to both. A very few words will explain the view which the Lord Ordinary takes of the evidence.

The pursuer claims as executor-nominate and residuary legatee or beneficiary under a mortis causa settlement made by the late William Hutchison on 28th July 1866, whereby he made his wife, the defender, the liferentrix of his whole estate, and gave the fee thereof to the pursuer. The pursuer was then the widow of William Hutchison's son, and the deed bears to be made for the love and favour which the testator had to his wife and daughter-in-law.

Some evidence has been led about this deed, and it may be taken as proved in point of fact, in accordance with the presumption of law, that at its date the testator intended it to regulate the disposal, not only of the money which stood in bank in his own name, but also of that which stood in name of his wife. This seems to have been explained to him by the agent, and there is no reason to doubt that he fully understood it. The

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whole funds were to be liferented by his widow, and then to go to his daughter-in-law. He had no children or descendants.

After this deed was made, however, Mrs Hutchison, the daughter-in-law, entered into a second marriage with her present husband, and became Mrs Gibson. It is in evidence that this marriage was not approved of by the late William Hutchison, and very serious disputes took place between him and the pursuers Mr and Mrs Gibson. Indeed, a Court of Session litigation was begun between them, and although that action was abandoned, it seems clear that Mrs Gibson's relations with her father-in-law were not what they had been before her second marriage.

In particular, it is proved that in the year 1868 the late Mr Hutchison resolved to make a new settlement in favour of his wife, giving her, in the event of her survivance, his whole property of every description. On the instructions of Mr Hutchison this deed was prepared by Mr Thomas Laurie. The draft of the deed is No. 24 of process, and after the draft was approved of, the deed was extended by Mr Lawrie, and sent in 1869 to Mr Hutchison to be executed. The extended deed is No. 20 of process. This deed was attempted to be executed in the beginning of 1870, not only by the late Mr Hutchison, but also by the defender, his wife, but unfortunately their hands were led by one of the instrumentary witnesses, Mr Nichol, and thus the deed was not effectually signed. Owing to this error or defect in its execution, the deed is inoperative as a will, but it becomes a very pregnant piece of evidence in considering the proof of the donation which followed. It is quite plain, upon the proof, that the late William Hutchison, when he attempted to make his second will, intended his wife, if survivor, to get his whole estate, whether it stood in his name or in her own. Mr Laurie's evidence, and the other evidence regarding the abortive settlement of 1870, is quite conclusive on this point, which, indeed, admits of no dispute.

The next point of importance is, that when the deceased brought back the settlement of 1870, and explained how the signatures had been affixed, he was told that the deed was bad and ineffectual, and that he would require to get a notary to sign for him. He demurred to the expense, when he was informed that if he chose he might take his money out of the bank and give it to his wife in a present, and that this would be effectual. Acting on this advice he did lift the money, he did give it to his wife, and he reported to Mr Lawrie that he had done so. This evidence is confirmed by the evidence of the defender, and, if believed, seems not far from conclusive on the subject. The Lord Ordinary entirely credits the evidence of the defender herself, of Mr Laurie, and of Mr Begg, as well as the evidence of Mr Nichol, whose want of skill or experience led to the mal-execution of the settlement of 1870. He thinks it proved that the late Mr Hutchison, finding that his attempted settlement was inoperative, and being advised that he might make a donation of the money to his wife, took that advice, and did make the donation accordingly. The donation never having been revoked, remains effectual to the present defender.

The sum deposited in the defender's own name raises a point of some subtlety, but really stands in the same position as the money uplifted and handed over by the husband. As the sum was already in the wife's name, there could of course be no actual transference or handing over, but there was everything of which the circumstances admitted. In addition to the evidence of the defender, the evidence from the abortive settlement, the evidence of Mr Laurie, Mr Begg, and Mr Nichol, there is really the evidence of the pursuer herself, who proves that Mr Hutchison, while aware that he could take his wife's money if he wished, stated that he did not want to do so, as he did not want any of his wife's money. Independent of the pursuer's evidence, however, the Lord Ordinary thinks there is enough to instruct donation to the defender of the money which lay in her own name. The very fact that the husband allowed it to continue in his wife's name for nearly twenty years, allowed the wife to uplift and re-deposit it at pleasure, and never interfered therewith in any way, goes a long way to prove or to imply donation; and when to this be added the circumstances which followed on the abortive settlement of 1870, the Lord Ordinary thinks that neither in law nor in justice is there any room for any distinction between the money which originally stood in the husband's name and that which stood in the name of the wife. The husband intended the wife to get the whole, and although the case may not be free from doubt, it is thought he has sufficiently effectuated this intention.

Practically, the declaratory conclusion of the action exhausts the whole dispute, and, accordingly, the Lord Ordinary has disposed of the question of expenses. In point of form, however, the conclusion of count and reckoning remains, and, if the parties wish it, the case may be put to the roll to exhaust that conclusion.”

The pursuers reclaimed.

Marshall and Strachan for them.

Solicitor-General and Scott for the defender.

Authorities cited— Morris v. Reddick, July 16, 1867, 5 Macph. 1036 (where the previous cases will be found referred to); Robertson v. Taylor, June 12, 1868, 6 Macph. 917; Wood v. Menzies, May 26, 1871, 8 Scot. Law Rep. 517.

At advising—