Scottish Court of Session Decisions

John Henry Thomson, residing at 16 Springfield Street, Leith Walk, Edinburgh, presented a petition in the Sheriff Court of Midlothian, in the character of executor-dative of the late John Thomson, praying the Court to grant decree against Mrs Mary M'Culloch or Thomson, widow of the said deceased John Thomson, ordaining her (1) to pay the sum of £465, 9s. 10d., with interest thereon, and (2) to deliver to the pursuer the whole writings and documents which were in the said John Thomson's house at the time of his death on 28th February 1881.

The pursuer, who was the only son (by a former marriage) of the late John Thomson, averred that the money sued for formed part of his father's executry estate, which was under his management, and that he was entitled to the delivery of all documents relating to that executry estate.

In her statement of facts the defender made the following averments—On the 25th January 1879 Mr Thomson, in pursuance of an intention which he communicated to the defender to make her a gift, paid into the branch at Newington, Edinburgh, of the British Linen Company Bank the sum of £424, 19s. l0d. upon a deposit-receipt in name of the defender, and at the same time paid into said bank a sum of £100 upon a current account, also in name of the defender. Upon leaving the bank he took along with him the deposit-receipt and bank pass-book for the said sums so paid in by him, and on his return home he handed the deposit-receipt and bank pass-book to the defender, and stated that the sums which these represented he then gave her as a present, gift, or donation from him, to be her own free and absolute property, adding at the same time that the money being in bank in her own name alone she had complete control over it herself. The gift was no doubt prompted by the fact that the deceased had been nursed by the defender through a dangerous illness. The defender took possession of the deposit-receipt and bank passbook. Prior to the death of Mr Thomson sums were withdrawn on three separate occasions from the said account-current. These were by cheque signed by the defender alone, and were given by her to her husband in loan. Some mouths before his death the deceased suggested to the defender the propriety of the deposit-receipt in question being put into the drawer used by the deceased for safe-keeping on behalf of the defender. The defender acquiesced in the propriety of the suggestion, and the deposit-receipt was accordingly placed in the drawer on the defender's behalf, the deceased at the same time telling the defender where the deposit-receipt was placed in the drawer, as well as the key of the drawer. Between this time and the date of the deceased's death the defender had frequent occasion to go to the drawer, but as no necessity arose for her removing the deposit-receipt she allowed it to remain there, where it was found after deceased's death, and was then taken possession of by defender as her property. The bank pass-book in defender's name was not considered of such importance, and it remained continuously in the defender's drawer. The sums due under the said deposit-receipt and account-current, as well as the deposit-receipt and bank pass-book vouching these sums, the defender held as her own individual property, and declined to recognise the claim now put forward by the pursuer thereto. They were given by the deceased to his wife, the defender, as a donation, and were her absolute property. The donation was never revoked by the deceased. Prior to the raising of the action the defender delivered to the pursuer all the documents which were in the deceased's house at the time of his death.

The pursuer pleaded—“(1) The defender's statements of alleged donation as between husband and wife, whether inter vivos or mortis causa, are irrelevant. (2) The alleged donation inter vivos can only be proved scripto. (3) The defence being unfounded in fact and untenable in law, falls to be repelled. (4) In respect the sum sued for forms part of the executry estate under the pursuer's management, and is in the defender's possession or under her control, she is bound to pay over the same to the pursuer as executor foresaid, and decree falls to be pronounced accordingly. (5) The pursuer, as executor foresaid, is entitled to delivery of all writings and documents belonging to the truster or relating to the executry estate, and the defender ought to be decerned to deliver those in her possession or under her control.”

The defender pleaded—“(1) The sums in the said deposit-receipt and pass-book being the absolute property of the defender, she ought to be assoilzied with expenses. (2) The said deceased John Thomson having made a donation or gift to the defender of the sums put by him upon deposit-receipt and in account-current in defender's name, and said donation or gift having never been revoked or recalled by the deceased, the whole sums due under the said deposit-receipt and upon said account-current, together with the said deposit-receipt and the bank pass-book instructing the sum due upon the account-current, belong absolutely to the defender as her own individual property, and the defender should be assoilzied from the conclusions for payment, with expenses. (3) The defender having already delivered to the pursuer, as executor foresaid, all writings and documents belonging to the deceased or relating to the executry estate, in so far as the same were in her possession or under her control, she also falls to be assoilzied from the conclusions for delivery of writings and documents, with expenses.”

The Sheriff-Substitute ( Hallard) allowed the defender a proof of the alleged donation, and to the pursuer a conjunct probation. The defender was examined and deponed—“I remember my husband being ill in the beginning of January 1879 from an affection of the bronchial tubes, of which he died. He was pretty seriously ill at the date I have mentioned. I attended him myself, and Dr Burn, Teviot Row, was the medical man who was called in. My husband almost completely recovered from that attack. He had been confined to bed. He was very pleased to have recovered his health, and said he attributed it a good deal to the care that had been taken of him during his illness by me, and by the doctor's orders being carried out. I acted as his nurse myself. He was sufficiently well to go out very soon after he got better. He went out without telling me where he was going. When he returned he found me up in the bedroom, where I was accustomed to sit. I think I was sitting on an easy-chair. He put the deposit-receipt in question into my hand. He had a bank passbook in his hand, and I think he laid it on the

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table. He said, when giving me the deposit-receipt—‘That is for you.’ I said, ‘Is it really mine?’ and he said, ‘Yes; it is really yours—so much yours that I could not draw it though I wished to draw it without your signature.’ I said, ‘Oh then, I consider it mine.’ He said, ‘Well, you may consider it yours—it is yours.’ He told me how to use it, and then he began to speak about the pass-book. He said, ‘When you have finished one hundred, deposit another, and use it as you require it.’ The pass-book was in my own name. I produce the pass-book in question. When my husband spoke about finishing one hundred and depositing another, I understood I was to draw £100 out of the deposit-receipt and put it into my own account with the bank. I then had the deposit-receipt and bank book both in my possession. My husband did not leave the room at that time. About half-an-hour afterwards I opened my drawer and put in the deposit-receipt and pass-book.” She was corroborated by a servant as to the feeling of gratitude entertained to her by her husband for her attention to him during his illness; and from her own testimony and that of others it appeared that after this time and up to his death, which took place on 28th February 1881, he had borrowed money from his wife as he required it in small sums. Thereafter the Sheriff-Substitute found, with reference to the sum of £465, 9s. l0d. concluded for in the first prayer of the petition, that the alleged donation by the late John Thomson to his wife (the defender) had not been proved, and that said sum formed part of the executry estate of the said John Thomson; repelled the first two pleas for the defender, and decerned against her in terms of said prayer; and found the pursuer entitled to expenses.

He added this note:—It would be easy to criticise the defender's evidence, and to show that it is altogether unreliable. This, however, is unnecessary; for even on the assumption that when Mr Thomson deposited the £529, 19s. l0d. in bank in his wife's name he intended to make a gift of that money to her, it is not proved that he carried his intention into effect. On the contrary, such evidence as there is goes to show that the money referred to never passed out of his own possession or control. At the time of his death the deposit-receipt for £424, 19s. l0d. was found in a locked drawer where he was in the habit of keeping his business papers, and any sums drawn from the account-current during his lifetime were so drawn by his directions, and were used by him exclusively for purposes of his own.

“Although the petition has been dismissed as regards the prayer for delivery of documents, the Sheriff-Substitute considers that the pursuer should get expenses without modification.”

The defender appealed, and argued—The parole evidence of Mrs Thomson as to the intention of her deceased husband to make her a gift of the sums in question was amply corroborated both by the evidence of witnesses who were aware of that intention and also by the real evidence in the case, i.e., the deposit-receipt and current account. There was therefore sufficient evidence to instruct the defender's contention that there was donation.

Authorities— Crosbie's Trustees v. Wright, May 28, 1880, 7 R. 823; British Linen Company v. Martin, &c, March 8, 1849,11 D. 1004; Gibson v. Hutchison, July 5, 1879, 10 Macph. 923.

The pursuer replied—There was no instance where the Court had sustained a gift of a sum of money lodged in bank on deposit-receipt in name of the donee on the evidence simply of the donee. This was the character of the evidence here. It was the evidence solely of the person most interested in the sum. There was no corroboration by the evidence of witnesses who were present when the husband made the alleged donation. The defender's contention must then be repelled.

At advising—