Scottish Court of Session Decisions

This was a Special Case presented for the opinion and judgment of the Court by Robert Hogg Miller, aged twenty; Martha Ferguson Miller, aged seventeen; Agnes Elizabeth Miller, aged fifteen; Jessie Williamina Miller, aged nine; and Isabella Eadie Miller, aged four; with the tutors and curators named by their deceased father's trust disposition, all as parties of the first part, and Mary Jane Miller, born 24th September 1873, and her tutors nominate, as parties of the second part.

Robert Miller, the testator, died on 25th November 1873, survived by his widow Agnes Hogg or Miller, and by the six children who were the parties to this case. By a trust-disposition and deed of settlement, dated 24th August 1863, to which his widow was a party, he nominated and appointed certain persons trustees and executors of his heritable and moveable estate, and tutors and curators for such of his children as should be in minority at his death. The purposes of the trust were as follows:— first, Payment of the testator's debts; second, Mrs Miller to have the use of the testator's household furniture so long as she shall remain a widow; third, A provision of £30 to Mrs Miller for the purchase of mournings, &c.; fourth, An annuity of £20 to Mrs Miller during her life, payable quarterly, and commencing at the first term of Candlemas for the quarter succeeding that term; fifth, provisions for the disposal of the testator's burying-ground at Sighthill; sixth, The testator's gold watch and appendages to be given to Robert Hogg Miller, his son; and. seventh, the residue to be divided amongst the children of the marriage between the testator and Agnes Hogg or Miller, and the survivors or survivor of them, and the lawful issue of any of them who might predecease him leaving such issue, equally among them if such children should be all sons or all daughters; but if otherwise, then so that each of the sons should receive in the proportion of a half-share more than the share of each of the daughters, the said shares to be payable to the children on their respectively attaining the age of twenty-one years, and until they should attain that age the trustees were authorised to make such interim payments to account of their shares as they might consider prudent and advisable, towards their maintenance, clothing, education, or advancement in life. After Robert Miller's death there were found in his repositories undelivered deposit-receipts and promissory-notes amounting to the sum of £4270, and consisting of money which belonged exclusively to the testator. These documents are of the following tenor:—

1873. Jan. 30. Interest-receipt, Robert Miller, Esq., and Mrs Agnes Miller, or the survivor, in trust for Robert Hogg Miller	£800	0	0
July 15. Do. the said Robert Miller and Agnes Miller, or either, or the survivor, in trust for Robert Hogg Miller	40	0	0
24. Do. the said Robert Miller, in trust for Robert Hogg Miller	10	0	0
	£850	0	0
Jan. 30. Interest-receipt, the said Robert Miller and Agnes Miller, or the survivor, in trust for Agnes Elizabeth Miller	£800	0	0
July 18. Do. the said Robert Miller in trust for the said Agnes Elizabeth Miller	40	0	0
24. Do. the said Robert Miller in trust for Agnes Elizabeth Miller	10	0	0
	850	0
June 30. Interest-receipt the said Robert Miller and Agnes Miller, or the survivor, in trust for Isabella Eadie Miller	£420	0	0
July 10. Interest-receipt, the said Robert Miller, in trust for Isabella Eadie Miller	20	0	0
24. Do. the said Robert Miller in trust for Isabella Eadie Miller	10	0	0
June 30. Promissory-note at twelve months by William Darcy Conway to the said Robert Miller and Agnes Miller, trustees for Isabella Eadie Miller	200	0	0
July 17. Promissory-note at twelve months by William Conway to the said Robert Miller, trustee for Isabella Eadie Miller	200	0	0
	850	0
Jan. 30. Interest-receipt, the said Robert Miller and Agnes Miller, or the survivor, in trust for Jessie Williamina Miller	£800	0	0
July 18. Do. the said Robert Miller, in trust for Jessie Williamina Miller	40	0
24. Do. the said Robert Miller, in trust for Jessie Williamina Miller	10	0	0
	850	0
Jan. 30. Do. the said Robert Miller, and Agnes Miller, or the survivor, in trust for Martha Ferguson Miller	£800	0
July 18. Do. the said Robert Miller, in trust for Martha Ferguson Miller	40	0	0
July 24 Interest-receipt, the said Robert Miller in trust for the said Martha Ferguson Miller	10	0
	850	0
Oct. 28. Do. the said Robert Miller, in trust for Mary Jane Miller	20		0
	£4270	0

The testator left no heritable property, and the moveable estate, other than the sums of money represented by these deposit-receipts and promissory-notes, and his household furniture and books is estimated at £1625, this consisting of his interest

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in a pawnbroking business. It was maintained by the five children, the parties of the first part, that the several sums of money invested in their names respectively, and secured by the deposit-receipts and promissory-notes (amounting to £850 to each of them), constituted provisions in their favour, and that the same were valid donations or bequests to the persons respectively named in the documents. It was maintained by the youngest child, the second party (to whom the sum of only £20 has been similarly provided), that the destinations contained in the deposit-receipts and promissory-notes were not effectual as bequests or testamentary dispositions, as not being under the hand of her father; and further, that they were not effectual as donations, in respect that the documents were never delivered to the alleged grantees, or to any person for their behoof. Mary Jane Miller accordingly claimed that the sums contained in these documents should be brought into residue, and disposed of in terms of the seventh purpose of the trust-disposition and settlement. She maintained, further, that in the event of the sums being held to constitute donations or bequests, they fell to be imputed pro tanto in satisfaction of the shares of residue effeiring to the legatees, in whose favour they might be respectively held to have been granted.

The following questions of law were submitted to the Court:—(1) Do the sums of money contained in the said several deposit-receipts and promissory-notes pertain to the children to whom the same bear to be respectively granted through the medium of a trust, as donations or provisions inter vivos granted in their favour by their father? (2) Do the said several sums of money pertain to the said children respectively as legatees of their father in virtue of the destinations contained in the said documents of debt. And alternatively (3) Do the said several sums of money form part of the residue of Mr Robert Miller's trust estate? (4) In the event of either of questions first and second being answered in the affirmative in regard to all or any of the said documents of debt, do the sums of money thereby accruing to the respective legatees fall to be imputed pro tanto in satisfaction of their shares of residue?

Argued for parties of the first part—These documents form a special provision in favour of those children in whose names they are granted. We maintain that the first two queries should be answered in the affirmative, and queries 3 and 4 in the negative. The case is somewhat different as regards the deposit-receipts and the promissory-notes; and to deal with these documents separately we find (1) as regards deposit-receipts, there are two cases which especially bear on the present ( Kennedy v. Rose and Lord President there, and British Linen Company's Bank v. Martin). As regards (2) the promissory-notes, there are a number of authorities. (Thomson on Bills, Barber, Carrick, Murray, Steele), and in England a similar rule prevails (Williams on Executors, Jones). It must be borne in mind that the residuary destination deals with the children unequally, giving to sons a preference over daughters, and a larger portion. On the other hand, these documents do not make any distinction, but provide to each £850, except to Mary Jane Miller, thereby not acting in the way of an anticipatory carrying out of the directions of the will.

Authorities (Scotch)— Kennedy v. Rose, 1 Macph. 1042; The British Linen Company's Bank v. Martin, 11 D. 1004; Thomson on Bills, p. 20; Barber v. Blackwood, M. 6097; Carrick v. Cay, M. 17,009; Murray v. Tod, Hume, p. 275; Steele v. Wemyss, M. 1409. (English)—Williams on Executors, vol. i. p. 105; Jones v. Nicolay, 7 Adm. and Eccl. Cases, 534.

Argued for parties of the second part—We are safe in relying upon the intention of the testator. [ Lord Neaves—It is certainly a very remarkable thing that these documents begin in August 1873, and continue at short intervals thereafter, that they are all constituted in favour of all the children then existing, and that the moment the sixth child is born the father begins to make a like provision in her favour.] The father died only two months after the birth of Mary Jane, his youngest child. We submit (1) that these documents are not donations, because they were not delivered; (2) that they are not testamentary writings, because they were not under the hand of the deceased. Some of them are taken in his own name in trust for the particular child, and some in the names of himself and wife. ( Cruikshanks, Watt's Trs., Cuthill.) [ Lord Justice-Clerk—The question in this case is whether the father held for himself or for his children. His possession is attributable to either view, and the point is, to which.] Three propositions may be laid down—(1) Where a document directs the payment of certain sums contained in a specified bill it is good, because the writing is a testamentary one; (2) where a deposit-receipt has been delivered it is good, because there is donation; (3) where a deposit-receipt has been merely taken in a certain person's name, and not delivered, but retained by the giver, no effect can be given to it. They cannot be regarded as invested securities with a destination, because such a use of a deposit-receipt or of a promissory-note is unknown.

Authorities— Cruikshanks, 16 D. 168; Watt's Trs. v. Mackenzie, 7 Macph. 930; Cuthill v. Burn, 24 D. 348, Bell's Lect., vol. ii. 913; Fulton, M. 1411.

At advising—