Scottish Court of Session Decisions

In April 1899 Mrs Margaret Higgins or Taggart, wife of Moses Taggart, Dundee, with consent and concurrence of her husband as her curator and administrator-at-law, raised an action in the Sheriff Court at Dundee against John Cochrane, weaver, Dundee, executor-dative of the deceased Margaret Higgins, millworker there. The pursuer prayed the Court “to find and declare that the sum of £50, being the principal sum payable by the Dundee Savings Bank, under and in virtue of the bank pass-book No. 6485, in name of the deceased Margaret Higgins and pursuer, with interest accrued thereon, was validly donated mortis causa to pursuer by the deceased Margaret Higgins; to find that the defender as executor aforesaid not entitled to obtain payment of said sum or to interfere with or prevent pursuer obtaining payment of the principal sum and interest as aforesaid, and to interdict him accordingly.”

A proof led before the Sheriff-Substitute ( Smith) disclosed the following facts:—Margaret Higgins, a sister of tire pursuer, died on 11th February 1899, aged seventy. She had an account with the Dundee Savings Bank from February 1876. On 27th July 1896, about which time she came out of the infirmary after undergoing an operation, she got the pursuer's name added to her own in the bank pass-book, and her account thereafter was kept in the name of herself and the pursuer, “to be repaid to either of them.” From that date till the death of Margaret Higgins the account stood in the two names, and the amount at its credit was always between £56 and £50. Under the bank's rules if the pursuer had come to draw money from the account it world have been paid to her, but for sums of £3 and upwards she would have required to sign her name before she got the money. The pursuer had never drawn money from the account. Margaret Higgins herself was practically a weekly visitor to the bank, either putting in or lifting money. The bank book was in the possession of Margaret Higgins at her death. She had a habit of talking to her relations and neighbours about her money, and a considerable amount of evidence was led as to what she said on the subject during the last three years of her life. The pursuer deponed that in 1896 Margaret Higgins “requested me to go down to the Savings Bank to get my name put into her bank account, as she wanted me to get the money;” that after the name was added, Margaret Higgins had said to her “that she wished me to give her a respectable funeral, and that I could keep the balance of the money in the bank to myself,” and that Margaret Higgins “left the bank book repeatedly with me.” Four other witnesses for the pursuer deponed that Margaret Higgins had declared to them that she had added the pursuer's name to her own in the bank book because she wanted the pursuer to get the money after her death, and that she intended that the pursuer should get it. One of these witnesses, however, also deponed that she had heard Margaret Higgins say that she might live to use the whole of the money herself. For the defender, James Higgins, a brother of Margaret, gave evidence that she had told him that the pursuer's name was put into the bank book in order that she might be able to go to the bank and draw whatever money Margaret Higgins wanted when the latter was unwell, and five other witnesses deponed that Margaret Higgins had declared to them that her brother James Higgins would get a share of her money when she died.

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On 13th December 1899 the Sheriff-Substitute ( Smith) pronounced the following interlocutor:— “Finds that the wish and intention of the deceased Margaret Higgins was that her sister Mary, the pursuer, should receive payment of her money in the Dundee Savings Bank is clearly proved, and that the mode of making a donation mortis causa adopted by the deceased though unusual is, in the circumstances of the parties, not incompetent, and is of sufficient legal validity to entitle pursuer to decree,” &c

The pursuer appealed, and on 21th March 1900 the Sheriff ( Johnston) pronounced the following interlocutor:—“Sustains the appeal and recals the interlocutor appealed against: Finds that the deposit-account of the deceased Margaret Higgins, which for ten years had stood in her own name with the Dundee Savings Bank, was, on or about January 6th 1896, transferred to the names of said Margaret Higgins and Mary Higgins or Taggart, her sister, ‘to be repaid to either of them:' Finds it not proved that the change was made animo donandi, or otherwise than for convenience in operating on the account: Therefore assoilzies the defender from the conclusions of the petition,” &c.

The pursuer appealed, and argued—A mortis causa, donation had been here constituted in favour of the pursuer. The Sheriff-Substitute, who heard the evidence, had found that it was the wish and intention of the deceased Margaret Higgins that the pursuer should receive the money at her death. The money was entered in the account by the wish of the deceased as payable to either herself or the pursuer. Delivery was not necessary to prove donation— Crosbie's Trustees v. Wright, May 28, 1880, 7 R. 823: Blyth v. Curle, February 20, 1885, 12 R. 671; Macfarlane's Trustees v. Miller, July 20, 1898, 25 B. 1201, Lord President Robertson 1208, and Lord M'Laren, 1211. This case was stronger than these, as the circumstances showed constructive delivery.

Counsel for the defender was not called upon.

At advising—