Scottish Court of Session Decisions

This action of multiplepoinding was raised by the Royal Bank in the following circumstances, the narrative being taken from the opinion of the Lord Ordinary ( Kyllachy):—The Royal Bank raised the action as holders of a fund of over £1000, which the deceased Charles Dunlop deposited in one of their branches on 1st June 1891. He received, it appears, in exchange, a deposit-receipt which, it is said, he at the same time endorsed in the presence of the bank agent. Some months afterwards, his granddaughter (Mrs Price) brought the deposit-receipt to the bank and desired payment, alleging that her grandfather had made her a present of the amount. The bank agent, however, learning from her that her grandfather had been very ill, and was in fact, unconscious, declined in the meantime to pay the money, and next day the old gentleman died.

It appears that the granddaughter claims the money exclusively, on the ground of the alleged donation. That is the sole title which she puts forward. She says, no doubt, that she is also executrix-nominate of the deceased, and his universal legatory. But she expressly declines to stand upon her title as executrix. That is to say, she declines to confirm so as to give the bank a valid discharge in that character.

On the other hand, the deceased's two

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sons, who are his next-of-kin, have intimated to the bank that they dispute the alleged donation, and claim that the money belongs to them in whole or in part. It does not appear whether they propose to reduce the deceased's will, or merely claim to bring the fund into the executry with a view to claiming legitim. But there can be no doubt that they propose to lodge a claim in this multiplepoinding if it is allowed to proceed.

Mrs Price lodged defences, pleading that the action was incompetent, there being no double distress, but the Lord Ordinary repelled this plea, and sustained the competency of the action.

“ Opinion.—… Practically, therefore, the ease just comes to this—A deposit is held by the bank, which is, on the one hand, claimed by an alleged donee, and is, on the other hand, claimed by the next-of-kin of the deceased. And in that state of matters (the donee's alleged title as executrix not being put forward) I do not see how I can be asked to hold that there is no double distress. The bank are not, I think, bound to try with the alleged donee the question whether this is a valid donation. Neither can they in the circumstances, and in view of the attitude of the next-of-kin, safely assume that it was a valid donation. The objector could remove all difficulty by confirming as executrix of the deceased, but, as I have said, she declines to do that. And that being so, I do not see how I can view the case otherwise than simply a competition between an alleged donee of the deceased and his next-of-kin. I shall accordingly repel the objections, and allow the multiplepoinding to proceed. I do so all the more willingly because I do not think that any cheaper or more convenient mode could be devised for trying the question, which sooner or later must be tried.”

Mrs Price reclaimed, and argued—There was nothing better settled than that a person claiming legitim was not entitled to sue directly for the recovery of monies belonging to the deceased. He must proceed against the deceased's executor. No claim made by the deceased's sons, therefore, could compete with the claim of the reclaimer, who was the executrix-nominate under the will of the deceased, but such claim could only be made through her. There was, therefore, only one claimant, and the action was incompetent— Connell's Trustee v. Chalk, &c., March 6, 1878, 5 R. 735.

Argued for the bank—The reclaimer based her claim on the alleged donation, and refused to put forward her title as executrix, and the claim of the deceased's sons was, therefore, a competing claim, and created double distress.

At advising—