Scottish Court of Session Decisions

This was an information by the Lord Advocate on behalf of the Crown against the defender, concluding for—(1) The sum of £15, being the amount of stamp duty on the inventory of the personal estate and effects of the deceased Mrs Grace Grierson or Harper, which inventory the defender, as having intromitted with the said estate and effects, was bound to exhibit in terms of the Acts 48 Geo. III. cap. 149, and 55 Geo. III. cap. 184, schedule part 3, and 23 & 24 Vict. cap. 80, see. 5; and (2) for the sum of £45, by virtue of the statutes 36 Geo. III. cap. 52, 45 Geo. III. cap. 28, 55 Geo. III. cap. 184, schedule, part 3, and 8 & 9 Vict. cap. 76, sec. 4, being legacy duty on the sum of £450 given by the deceased to the defenders as a donation mortis causa, and subject as such to duty as a legacy. At the hearing of the case the pursuer did not insist in the first count of the information, and in answer to the second count it. was alleged by the defender that the sum in question had been gifted to her by the deceased absolutely and inter vivos, and that consequently legacy duty was not payable thereon. The facts of the case as admitted and proved in evidence are sufficiently stated in the note appended by the Lord Ordinary in Exchequer Causes (Curriehill) to his interlocutor, which was as follows:—

“ Edinburgh, 12th November 1877.—The Lord Ordinary having heard the counsel for the parties and considered the closed record, proof, and whole process—(1) Finds that the pursuer does not now insist in the first count of the information, Therefore assoilzies the defender therefrom, and decerns: (2) Finds in terms of the second count of the information, and decerns.

Note.—In this case the parties are agreed that a donation of £450 was made by the deceased to the defender, and the only question is, Whether the donation was inter vivos and absolute or was mortis causa and therefore revocable and a legacy; The defender maintains that the gift was absolute and inter vivos, and the onus probandi rests with her. The proof of such a donation must be clear and unambiguous.

The circumstances of the case, as admitted on record and disclosed in the proof, are shortly as follows:—The defender, who is the illegitimate daughter of a brother of the deceased Mrs Harper, resided from her childhood with the deceased, who at the time of her death on 29th April 1871 was upwards of seventy years of age. She had been for a year before her death suffering from heart disease, and in April 1871 she became dropsical, and was plainly dying from the effects of her disease. Several years before her death Mrs Harper acquired a sum of about £450 through the death of her husband, and that sum she deposited in bank on a deposit-receipt taken in name of herself and the defender, and payable to either of them and the survivor. From time to time the money was uplifted and re-deposited, the interest being received by the deceased and applied towards her maintenance, and she always kept the receipts in her own custody. She had no other means of subsistence than the money in question except supplies of farm produce from one of her brothers to the value of about £20 per annum. The defender, who gave her evidence throughout with great candour, and I believe with perfect truth, stated that the money was originally deposited by her aunt in the terms above set forth in order that in the event of her decease it might be a provision for the defender. And she further stated that on 18th April her aunt, being aware of her precarious state of health, and fearing lest after her death the defender might have difficulty in getting the money for her own use, gave the deposit-receipt to the

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* Decided 12th November.

Page: 106↓

defender and desired her to get the money placed in her own name so as to secure herself. This the defender accordingly did; and on 18th April she obtained a new deposit-receipt for the amount, payable to herself alone. And she accordingly, with her aunt's sanction, retained the receipt in her own custody as her own property until and after her aunt's death, which took place on 29th April 1871, and she ultimately uplifted the money and applied it to her own use. The defender also stated that nothing was ever said by her aunt as to the gift being revocable, or as to the repayment of the money in the event of her recovery.

Now, it appears to me that the evidence of the defender—which is indeed substantially the whole evidence in the case—is not sufficient to establish an absolute gift of the money inter vivos. On the contrary, I think it clearly shews that the gift was made intuitu mortis, and I cannot doubt that had the deceased recovered and sought to retain the money the defender would have been compelled to restore it to her aunt. In short, the donation was a mortis causa gift and a legacy, and is therefore chargeable with the legacy duty claimed. In the circumstances of this case I do not think that expenses should be given against the defender.”