Scottish Court of Session Decisions

William Jamieson, crofter, died on 15th January 1878, and Francis Jamieson was decerned his executor-dative qua one of the next-of-kin on 17th May following. The wife of the deceased, Mrs Barbara Moir or Jamieson, uplifted shortly after his death a deposit-receipt with the North of Scotland Bank at Turriff, which was in the following terms:—

“£50.

North of Scotland Bank, Turriff, 25th May 1877.

Received from Mr William Jamieson and his wife, Mrs Barb. Jamieson, Milltack, King Edward (payable to either or the survivor), fifty pounds sterling, which is placed to their credit on deposit-receipt with the North of Scotland Banking Company.”

Mrs Jamieson died about two months after her husband, leaving a last will and testament by which Alexander M'Leod and George Barron were appointed her executors.

The present action was raised by William Jamieson's executor against the executors of Mrs Jamieson to determine who had right to the contents of the deposit-receipt, and for the settlement of other claims between the parties in regard to Mr Jamieson's executry estate.

The pursuer pleaded—“(1) The said deposit-receipt belonging exclusively to the deceased William Jamieson, and the same being unwarrantably uplifted by his widow after his death, the same belongs to the estate of the said William Jamieson, and the defenders, as executors foresaid, are bound to repay the amount of it to the pursuer as his executor.”

The defenders pleaded—“(1) The said deposit-receipt having belonged exclusively to the defenders' author, they ought to be assoilzied from the conclusions of the action so far as regards the sums contained therein.”

A proof was led, from which it appeared that the receipt in question was the last of a series of receipts in the same or similar terms, dating from 1867 onwards, and that shortly before the date of the first of these a considerable sum of money for arrears of wages had been paid to Jamieson and his wife by their employer, the proceeds of which were probably contained in that receipt. The sum deposited had decreased from £308 to £50, and it had been operated upon mainly, if not solely, by the husband.

The Sheriff-Substitute ( Dove Wilson) pronounced this interlocutor:—“Finds in fact that the sum of fifty pounds sued for by the pursuer was deposited in bank by his author in name of himself and of his wife, or the survivor of them; that said sum was money which belonged to the pursuer's author; that during his lifetime he retained the control of it; and that it, is not proved that he made a donation of it to his wife: Finds in law that the terms of the deposit-receipt did not constitute a bequest to the wife.” …. He added this note:—

“ Note.—This case seems to be ruled by the case of Watt's Trustees, 1st July 1869, 7 Macph. 930. The only difference is that here the parties in whose favour the deposit-receipt was granted were husband and wife, while there the parties were aunt and niece. The difference is immaterial. In this case, as in Watt's, there had been a series of similar deposit-receipts, and the deceased had all along dealt with them as being his

Page: 758↓

own property. In neither case is there any proof of the deposit-receipts having been delivered during the deceased's lifetime, unless for the temporary purpose of uplifting and re-depositing. And in both cases it appears that the money was the deceased's money. In Watt's case that was admitted. In this case it is proved, as the result of such evidence as is obtainable at this distance of time, from the date of the original deposit. It appears that very shortly before that date both the husband and the wife received large sums for arrears of wages from their joint employer. What became of the wife's share is not ascertained; but as the original sum deposited by the husband was within a few pounds of the sum then received by him from his employer, the great probability is that it consisted of his wages. It therefore appears, so far as can be seen, that the money was originally the husband's, and that during his lifetime he always retained the control of it. There was therefore no donation of the money to his wife during his lifetime either as a donation inter vivos or as a donation mortis causa.

If it were permitted to sustain the deposit-receipt as a will bequeathing the money to the wife, it would probably be carrying out the husband's intention, for it is difficult to conceive what he could have meant by constantly taking the receipts in the terms he did, unless it was that he wanted that his wife should get the money in the case of his death. But it is settled by the case of Watt's Trustees, already quoted, that the terms of such a document are insufficient to constitute a will. It has been considered that receipts in similar terms might be taken for the mere sake of convenience, or for other reasons, and it has been held to be impossible to allow them to stand in the place of a will, which is a thing which can so easily be expressed in an unambiguous shape when it is wanted to be made.”

On appeal the Sheriff ( Guthrie Smith) recalled the above interlocutor, adding this note—

“ Note.—The question of the deposit-receipt is one of considerable legal interest, which in the present state of the authorities cannot be said to be free from difficulty.

A deposit or banker's receipt is simply an acknowledgment that he holds a sum of money for which he shall be accountable to the person of whom it has been received. It is not a mercantile investment—it is not negotiable—it is (as is pointed out in the case of Watt v. Watt's Trustees, which is referred to by the Sheriff-Substitute) a writing incapable of any testamentary or dispositive effect, for the simple reason that it is not a writing of the party himself; it is a writing to the bank. But it may be the subject of a donation when delivered to the donee in circumstances implying that it was intended that he should uplift and keep the money— M'Cobban v. Tait, 6 Macph. 310; Ames v. Witt, 23 Bea. 619.

It appears from the evidence that on the 25th November 1867 the late George Moir, in whose service the late Mr and Mrs Jamieson had been for many years, drew from his bank account the sum of £448 for the purpose apparently of paying to these persons arrears of wages. About £315 was paid to William Jamieson, and considerably over £100 was paid to his wife. Four days after there was deposited with the Turriff branch of the North of Scotland Bank, in the name of William and Barbara Jamieson, the sum of £308, and during the next ten years money was frequently uplifted and deposited, all the receipts being in both names. That Mrs Jamieson must have been aware of the terms of these receipts is proved by the fact that the one dated 1st December 1868, for £329, bears her endorsement along with the name of her husband; and the bank agent states, that although Jamieson chiefly operated on the account, his wife sometimes came to the bank and may have done so also. So standing the facts, it may be reasonably inferred that these two parties considered this as a joint fund in which they were equally interested.

The three last deposit-receipts, dated 18th March 1875, 15th May 1876, and 25th May 1877, are for £50 each, and run in the name of ‘Mr and Mrs Jamieson, payable to either or the survivor.’ The question relates to the last, which was uplifted by Mrs Jamieson, who did prove the survivor, on 26th January 1878, a few days after her husband's death. It is now well established that a husband may make a provision for his wife after his death, as, for instance, by effecting a policy of insurance on his own life payable to the wife and her assignees ( Galloway v. Craig, 4 Macq. 267), or by buying a house and taking the title in her name (as in Rust v. Smith, 3 Macq. 378). And more recently it has been decided ( Walker v. Walker, 5 R. 965) that where a man lends a sum to a statutory board, and receives in return a bond of the nature of a debenture, payable ‘to himself and wife and the survivor, and the assignees of the survivor,’ the widow on her survivance takes the fund in virtue of the special destination.

The Sheriff considers that it is his duty to follow the principle of this last case in disposing of the question which is now before him. There is no substantial difference between a deposit-receipt and a debenture. Both issue out of a contract of mutuum, and both mean the same thing. Indeed, many companies who receive money on loan give indifferently either a deposit-receipt or a debenture, and if the special destination is to be accepted as a specific appropriation, such as a court of law is bound to respect in the one case, it is difficult to assign a reason for rejecting it in the other.

The only difference between them may be this:—The deposit-receipt may be taken in terms stated, for convenience in operating on the account. The husband may wish that it should be in the power of either spouse who happens to be going to the market to call at the bank and uplift the money; and when this is established, it will of course negative the notion of a provision, and at his death the wife's claim will fail (as in Marshall v. Crutwell, L.R., 20 Eq. 328). In this case, however, there is no evidence of that kind. Both parties being dead, there is no direct proof of what they intended; but looking to the fact that they both came to be possessed of funds about the same time, and that uniformly with the knowledge of both the receipts were taken in their joint names, it may be inferred that it was the wish and expectation of both that the money should pass to the survivor. This being so, the Sheriff sees no technical reason why their intention should not receive effect.”

The pursuer appealed to the Court of Session, and argued—There was here no donation mortis causa of the receipt and its contents by Jamieson to his wife. A deposit-receipt by itself

Page: 759↓

was not a document habile to convey a legacy, and there was here no evidence of delivery or of intention to donate.

Additional authority— Crosbie's Trustees v. Wright and Others, May 28, 1880, 17 Scot. Law. Rep. 597, and authorities cited there.

At advising—