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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Williamson v. Williamsons [1886] ScotLR 24_170 (14 December 1886)
URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0170.html
Cite as: [1886] ScotLR 24_170, [1886] SLR 24_170
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SCOTTISH_SLR_Court_of_Session
Page: 170↓
Court of Session Inner House First Division.
v.
Facts:
The Presumption of Life Act 1881 provides that where no presumption arises from the facts proved in a petition under it that the absentee died at any particular time, he shall be held, for the purposes of the Act, to have died at the expiry of seven years from the date of his disappearance. In a petition under the Act the petitioner established facts which showed a probability that the absentee died on a particular journey, but also left it quite a reasonable deduction from the facts that he did not. Held that the question not being one of mere probability, there was no “presumption arising from the facts” that he died on the journey in question, and therefore that the presumption of the Act, that he died seven years after his disappearance, must be applied.
By disposition dated 27th March 1844 Mrs Jessy Stewart Dingwall Fordyce, relict of Arthur Dingwall Fordyce of Culsh and Brucklay, disponed to and in favour of Dr Benjamin Williamson, physician in Aberdeen, in liferent, and to Arthur Stewart Williamson, his youngest son, in fee, a portion of the lands of Pulmuir, called Arthur-seat, on the north side of the river Dee, in the immediate vicinity of Aberdeen. Dr Williamson died on 23d August 1850, and Arthur Williamson entered into possession and enjoyment of the said heritable estate. In 1857 Arthur Williamson left Scotland for Australia, and was between 1862 and 1865 partner with his brother John Burnet Williamson in various sheep transactions, and other business. The brothers parted in July 1865 at Peak Down Mines, Northern Queensland, from which place Arthur Williamson intended to proceed with horses overland to Sydney, while John Williamson was to go to the same place by sea. John Williamson never saw or heard of his brother again, nor was he heard of again by any of his friends or relatives. Arthur Williamson was about twenty-six years of age when he disappeared. He was unmarried, and was aware of his rights. In these circumstances the present application was made by the said John Burnet Williamson, as the person entitled to succeed to the heritable estate, for authority to make up title to the estate of his brother under the Presumption of Life Limitation (Scotland) Act 1881. The heritage had been compulsorily taken by a public body under the Lands Clauses Act 1845, but the consigned price (£6000) remained heritable in a question of succession, and the petitioner, as heir-at-law, claimed it and also the accumulated rents. These had been accumulated by the agents for the absentee by a factor loco absentis.
The petitioner averred that at the time the absentee disappeared he knew that he was the owner of the heritable property above referred to, and also that he was entitled to certain move-able property. He also averred that the absentee
Page: 171↓
corresponded with his relatives in this country down to 1864, and that he was on cordial and affectionate terms with himself (the petitioner) and the other members of his family. He further alleged that in these circumtances “a presumption arose from the facts that the said Arthur Williamson died in or about July 1865, having been lost in the bush in the course of the journey on which he was setting out when he last saw him,” or alternatively, that the absentee must be presumed to have died not later than July 1872. Answers were lodged by the relatives (other than the petitioner) who were next-of-kin of Arthur Williamson, assuming him to have died at the expiry of seven years from the time of his being last heard of, i.e., in July 1872, and who were therefore interested in the accumulated rents. In these answers, while admitting generally the accuracy of the statements in the petition, they took exception to the averment that a presumption arose from the facts that Arthur Williamson died in or about July 1865.
They averred that no presumption arose from the facts that Arthur Williamson died at any definite date, and accordingly that under the 8th section of the statute it fell to be presumed that he died on the day which would complete a period of seven years from the time of his last being heard of. They accordingly maintained that a day in the month of July 1872 must be taken as the date of his death.
Parties were allowed a proof of their averments, and evidence was led on commission in Bathurst, New South Wales. Under this commission John Williamson, the petitioner, was examined. He stated that when he and his brother parted company in July 1865 they were on the best of terms, and his brother was in excellent health; that the cause of their parting company was an inability to longer carry on the business which they had been working together; that Arthur had when they parted some cheques—£80 or £90—and a watch; that he had no knowledge of the country through which he was going to travel; that he was not a good bushman, and that it was probable he had perished either from want of water or at the hands of the blacks. It also appeared from his evidence that though they parted in 1865, Arthur to go to Sydney by land and John by sea, John did not start for Sydney for some time, but engaged in various pieces of business, and did not reach Sydney until 1869, when he obtained no news of Arthur at the inn at which they were to meet. He did not then advertise or make inquiry for him elsewhere, and left Sydney, but in 1877 he took some steps by letter and advertisement to discover him. Other evidence was led of persons who knew the district through which Arthur was to travel, to show the probability of his having perished on the journey.
In addition to the evidence taken in New South Wales, evidence was also taken in Edinburgh and Aberdeen. Various letters were recovered under this diligence. Among others, one dated 16th September 1862 from the absentee to his mother, the last received by her or the family from him. Another letter recovered was a copy of one dated 22d February 1865, addressed to the absentee by Mr Cochran, his man of business in Aberdeen, acquainting him with the death of his brother William, and communicating certain business matters which required to be attended to. This letter was returned to Mr Cochran. In March 1865 Mr Cochran again wrote Arthur Williamson on business matters to an address he had given in his letter of 1862, but this letter was returned unclaimed. In 1867 further letters were written to him by Mr Cochran, and efforts were made through bankers in Australia to obtain a clue to his whereabouts, but without success. His relatives at home advertised for him in Australian papers in 1876, also without success. The proceedings as to his succession, now reported, were also advertised in 1885 and 1886, but no news of him was ever obtained.
At the discussion on the evidence it was argued for the petitioner—That the facts and circumstances showed that the absentee died in July 1865 in the course of the journey on which he was setting out when he was last seen.
Authorities— Lapsley v. Greerson, November 19, 1845, 8 D. 34; Fairholme v. Pringle, March 18, 1858, 20 D. 813; Garland v. Stewart, November 12, 1841, 4 D. 1; Campbell's Trustees v. Campbell, February 1, 1834, 12 S. 382; M'Lay v. Borland, July 19, 1876, 3 R. 1024; Rhind's Trustees v. Bell, January 15, 1878, 5 R. 527,
Replied for the respondents—There was only a probability that Arthur Williamson died on the journey in question, but the facts were not so clear as to raise a presumption under sec. 8 of the statute. July 1872 ought to be fixed as the date of the absentee's death.
At advising—
In each case, however, it is necessary to fix the precise time at which the absentee is to be presumed to be dead; for when a person has disappeared twenty years ago it may be a matter of considerable importance whether he is to be presumed to have died the year after he disappeared or not until nineteen years thereafter.
Seeing, then, that a time had to be fixed, the statute declares by section 1 that when a person has been absent from Scotland, or has disappeared for a period of seven years or upwards,
Page: 172↓
In the present case the petitioner says that he has proved by the evidence which he has produced that the absentee died in July 1865. No doubt, even under the old common law, it was perfectly possible to rebut the presumption of life by facts and circumstances which demonstrated that the absentee had died at a definite date. The question therefore here comes to be whether or not the facts connected with the disappearance of the absentee raise the presumption that he died at the “definite date” fixed by the petitioner? I cannot say that I think from the facts the petitioner has proved that this is made out.
We know that the absentee left Rockhampton in 1865, and that in his journey to Sydney he had to pass through a perilous country. It is not improbable that he was murdered on his way to Sydney, as he is known to have had valuable property in his possession when he parted from his brother. That, however, is not sufficient evidence for the determination of the question now before us. We do not know for certain that the absentee did not arrive in Sydney—he was not known there, and indeed so little importance did his brother attach to not meeting him in Sydney, as arranged when they parted, that he does not seem to have made any special inquiries as to whether he had been seen in the town or district. Suppose that Arthur Williamson did reach Sydney in safety, and that, being unknown, he passed through it unobserved, he may have died elsewhere, and long after the date fixed by the petitioner.
It is not by a balancing of probabilities that a question like this is to be determined. In order to fix July 1865 as the date of the absentee's death we should require to be satisfied that he died in the course of his journey to Sydney, and the evidence upon that matter does not amount, in my opinion, to anything more than a probability. That being the view I take of the evidence, I do not think that the facts and circumstances here are sufficient to raise a presumption strong enough to overcome the old law. I do not in the present case attach any importance to the cessation of letters between the absentee and his relatives in this country, or think that the date of his last letter in any way helps us to determine the period of his death. In some cases the sudden cessation of correspondence is an important element, but in the present case I do not think it helps us in the least, for we happen to know that he had been made aware he was not to receive any further pecuniary assistance from home, and this may to some extent account for his giving up writing.
On the whole matter, I think that we are in the present case bound by the provisions of sec. 8 of the statute, and that as no presumption arises from the facts that the absentee Arthur Williamson died at any definite date, then he must be presumed to have died seven years after the day upon which he left Rockhampton.
Before the passing of the present Act there was by the old law a strong presumption in favour of life, and very clear evidence was required to overcome that presumption. It may be that proof of a less convincing character would now be sufficient. Upon that I give no opinion. All I desire to say is, that I agree in the construction which your Lordship has put upon the provisions of the statute. The facts and circumstances must come up to this, that we must be satisfied that the absentee died at the definite date fixed upon by the petitioner. In the present case the petitioner has in my opinion failed to make this out, and accordingly he can take the benefit of the Act only to this extent, that Arthur Williamson is to be presumed to have died at a time which makes seven years from the day upon which he set out on his journey to Sydney.
In this case Arthur Williamson has disappeared for more than twenty years. Therefore he is to be presumed to have died seven years after he was last heard of, unless it can be shown by satisfactory evidence that he died at an earlier date.
I quite concur with what your Lordship said as to the character of the evidence upon which an earlier date than the se en years is to be determined, and if I were charging a jury in such a question I would put it to them thus—Is it, or is it not, beyond all reasonable doubt that the absentee died upon the journey?
This is not a question of probabilities, for many things may have happened to Arthur Williamson which are not excluded by the evidence. All that we can say is, that from the facts before us there is no presumption that the absentee died at the date fixed upon by the petitioner, and that being so, I agree in the result arrived at by your Lordship.
Page: 173↓
The Court accordingly pronounced an interlocutor directing the estate to be administered on the footing that the absentee had died at 31st July 1872, being the expiry of seven years from the year, 1865, when he was last heard of.
Counsel for Petitioner— Darling— Ferguson. Agents— Carment, Wedderbun,& Watson, W.S.
Counsel for Respondents— H. Johnston. Agents— Hagart& Burn Murdoch, W.S.