Scottish Court of Session Decisions

This was an action at the instance of Mary Sharp, grandniece and executrix-dative qua one of the next-of-kin of the late William Matthew, mason, Markinch, who died on 28th October 1881, against Mrs Margaret Paton, a niece of the deceased, to recover payment of the sum of £250, the contents of three deposit-receipts for £175, £60, and £15 respectively, granted by the Commercial Bank, Markinch, to William Matthew, and uplifted by the defender on 19th October 1881.

The defence was that during his last illness William Matthew endorsed the deposit-receipts, and on 18th October 1881 handed them to the defender, intending thereby to make a donation to her of the contents.

The pursuer averred that for some weeks prior to his death William Matthew was confined to his bed, and was mentally incapable of transacting any business or doing anything for himself, and that the deposit-receipts and their contents were not transferred by him to the defender by way of donation or on any other title.

From the proof (in which the Lord Ordinary appointed the defender to lead) it appeared that at the date of William Matthew's death there were alive a brother named George, who died in March 1882, leaving two children, Agnes and George, three nieces, Janet, married to her cousin George, Cecilia, and the defender, and two grandnieces, Mary Sharp, the pursuer, and Elizabeth Sharp. The sums of money contained in the deposit-receipts composed the whole moveable estate of the deceased, who was also possessed of some house property, the value of which did not appear. The deceased died of heart disease and bronchitis at the age of seventy-five; and the doctor who attended him during his last illness deponed that he was seriously ill from the time he began to attend him on 13th October, though sometimes out of bed up to near the end; that there was nothing wrong with him mentally, though he became very weak for the last few days of his life; that previous to that he knew quite well what he was about, and that he was naturally shrewd. It was proved that he was in the habit of taking stimulants against the advice of the doctor because he thought it did him good, but none of the witnesses deponed to having seen him under the influence of drink at any time during the last three years of his life. He was attended to during the last four years of his life principally by a neighbour named Mrs Gilmour, who did his household work. During his last illness the defender and her son, who lived in Markinch, were constantly with him, and no intimation of his illness was sent by them to any of his relatives, with the exception of Mrs Janet Matthew, a sister of the defender, who was summoned by her from South Shields, where she lived, and arrived on 19th October. The pursuer lived with her mother at Ladybank. On Sunday the 16th the defender was with the deceased the whole day, and with reference to what then passed between them depones—“He told me to send up my boy—that he was going to endorse the bills to-morrow, and give him the bills to go to the bank. (Q) Did he say for what purpose he was going to endorse the bills?—(A) Yes, he said he was going to give me the whole of the money to myself, because I was the only one he had there who seemed to care for him.” In accordance with instructions received from his mother, the defender's son Francis Paton obtained the deposit-receipts from the deceased the following day (Monday) and took them to the bank, where payment was refused because they were not endorsed. Francis Paton gave them to his mother, who took them the same evening to the deceased. She asked him (according to her evidence) “Why he gave them to the boy without being endorsed. He said there was no matter, he would get them done. He said he would sign them, but he said not that evening.” The defender then took the deposit-receipts home with her, and on the following evening went with her son to the deceased, who endorsed the receipts, and “handed them back to me, and told me he had made me all right.” In cross-examination she deponed—“He endorsed the bills, and said that he had made me all right, and he had nothing now. (Q) Did he say that he had given you all charge?—(A) Yes, and the whole power of his house. (Q) When was it that he used the words ‘all charge?’.—(A) After he gave me the bills he said he had given me all the money, and to do as I pleased, and the whole of his house. (Q) Were these the words he used, that he had given you the money and all charge?—(A) Yes.”

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Francis Paton, aged eighteen, the defender's son, deponed that when he and his mother went on Tuesday the deceased said he had made a mistake in not having endorsed the receipts on the previous day. “(Q) Did he not say that he had given your mother all charge of the money?—(A) Well, he might; I do not know. (Q) Will you swear that was not the expression used?—(A) I do not remember the very words he used, but they were to that effect. (Q) That he had given your mother charge of all his money?—(A) Yes.” “ By the Court.—There was nothing said to me about my mother getting the money as his executor, or to take charge of for others as well as for herself; it was as a gift. I understood it to be a gift to her. (Q) Was that just your own belief, or did Mr Matthew say that?—(A) He said so. (Q) But you told us that what he said on the Monday morning was to have the money deposited in your mother's name?—(A) Yes. (Q) There was nothing then said about its being a gift?—(A) No. (Q) Then are you sure that he ever used the word gift?—(A) I have heard him say several times that he had given my mother the money. (Q) Tell us any of the occasions on which he said that he had given the money to your mother.—(A) I went over nearly every night before that, and he spoke about it to me just when he and I were present. (Q) Do you mean every night after you had got the receipts changed at the bank? —(A) It was before they were changed. He said he was meaning to give my mother the money. He said she was the only one he had to give it to, that the rest of his friends had all forsaken him, he thought.”

On Wednesday the 19th the defender's son uplifted the contents of the deposit-receipts and re-deposited the money in his mother's name.

Mrs Janet Sharp or Matthew deponed that when she arrived on the 19th the deceased said, with reference to a remark as to the expense of the journey, that the defender would make that all right, for he had “given her his money to do just as she pleases.” She also deponed that he said the same thing on another occasion, assigning as the reason that she alone of his relatives had any affection for him, and that he was “determined to make her all right,” and that he had said to her that all she might get depended on her sister's generosity. Another person who heard one of these conversations said that the deceased's words were that the defender had all his money “to do as she pleases, and has all power.”

A neighbour deponed that on the deceased making a similar remark to her, she had said “It appears you are going to make her your heir;” and he said “There is no other person coming near me to be it.”

Both the defender and the pursuer's mother Mrs Sharp deponed that to their knowledge the deceased had at one time made a will dividing his money, but this will was not found at the time of his death.

The defender (in addition to what is above narrated) deponed—“I went to his house again on the night of Wednesday the 19th. He asked me then if I would write a wish. (Q) A wish?—(A) A wish or will, just a line to keep me right. I wrote it. He did not sign it. He told me that everything was mine, and that I could do as I pleased. I asked him to sign it, and he told me to do it myself, as it was only a memorandum for my own use it was only a line or two to keep me right. I signed it. George Matthew threw that paper into the fire on the day of the funeral, saying that it was of no use.” (Q) “What did the line contain?—(A) To give his brother George the east house, and my two sisters the west house, and I got the money, and I was to give the two girls £10 each at any time that I thought proper, and if they made any dispute to give them nothing. (Q) What was your sister Mrs Matthew to get?—(A) She was to get the east house, and my other sisters the west house between them. (Q) And there was to be a division of the residue?—(A) I was to get the money, and to give the two girls, the pursuer and her sister, £10 each.”