Scottish Court of Session Decisions

Kenneth Cameron, sometime carpenter at Lews Castle, Stornoway, and afterwards residing at Dantryfail, Achterneed, in the parish of Fodderty and county of Ross and Cromarty, died at Dantryfail on 24th October 1899. After his death three deposit-receipts were found pinned together in a desk belonging to him, which was in a room occupied by him in the house of his niece Mrs May Cameron or Frank, Dantryfail aforesaid. These deposit-receipts were all granted by the National Bank of Scotland, Limited, and were as follows, viz.—(1) A deposit-receipt dated Stornoway, 10th May 1899, for £1000, in favour of himself and John Rose, farmer, Strathpeffer, payable to either or survivor; (2) a deposit-receipt dated Stornoway, 10th May 1899, for £1000, in favour of himself and Mrs May Frank, Strathpeffer, payable to either or survivor; and (3) a deposit-receipt dated Stornoway, 10th May 1899, for £650 in favour of himself and William Cameron, his nephew, payable to either or survivor.

Kenneth Cameron left no will of any kind, and he had never been married.

In January 1900 John Rose, Mrs May Frank, and William Cameron, as pursuers and real raisers, brought an action of multiplepoinding in the Sheriff Court at Dingwall, in which they called as defenders the National Bank of Scotland, Limited, as the holders of the fund in medio after mentioned, and Donald Cameron, furniture dealer, Inverness, Mrs Barbara Cameron or Campbell and her husband Donald Campbell, farm grieve, Dingwall, and Jessie Cameron or Macleod and her husband George Macleod, labourer, Achterneed. The fund in medio was the sum of £2650 contained in the three deposit-receipts referred to supra.

The pursuers and real raisers and the defenders Donald Cameron, Mrs Barbara Cameron or Campbell, and Mrs Jessie Cameron or Macleod, were all nephews or nieces and next-of-kin of the deceased Kenneth Cameron. After the raising of the action Donald Cameron was appointed executor-dative qua next-of-kin of Kenneth Cameron, and sisted himself in that capacity as a party to the action of multiplepoinding.

Claims in the action were lodged by the pursuers and real raisers, and by Donald Cameron as Kenneth Cameron's executor-dative.

The pursuers and real raisers averred as follows:—“(Cond. 2) The pursuers and claimants believe and aver that the said deceased Kenneth Cameron, who was their uncle, and was unmarried, intended to make, and did in point of fact make, a donation to them of the respective sums represented by the deposit-receipts above referred to, and that they are entitled to receive payment of the same. (Cond. 3) The said deceased Kenneth Cameron resided during the last two years or thereby of his life with the pursuer and claimant Mrs Frank, and was on friendly and intimate terms with her and the other pursuers and claimants John Rose and William Cameron, and frequently told them that he intended to provide for them, and the deposit-receipts referred to were taken in the terms stated for that purpose.”

They pleaded—“The deceased Kenneth Cameron having made an effectual donation of the sums in the deposit-receipts for £1000, £1000, and £650 respectively to the claimants Mrs Frank, Mr John Rose, and Mr William Cameron, they are entitled to decree therefor with interest and expenses.”

The claimant the executor-dative averred as follows:—“(Cond. 6) The deceased was a

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very reserved man, and he does not appear to have been in the habit of discussing his money matters with anyone. It was known that he had saved money, but the amount of his means was known only to his bankers. In any case, the fact of his having left over £3000 came as a surprise to his friends. He occasionally spoke to those with whom he came in contact about leaving his money in such a way as to escape the payment of Government duty, and it is believed and averred that his object in taking the said deposit-receipts in the terms he did was with that object, and with the view of facilitating the administration of the estate. In any case, a deposit-receipt not being a habile document by which to convey a legacy, the claimant maintains that the whole fund should be paid over to him as executor foresaid for distribution among the next-of-kin of the deceased according to the rules of intestate moveable succession, and he claims to be ranked and preferred to the whole fund in medio”

He pleaded—“(1) The sums of money contained in the deposit-receipts in question having been the property of the said Kenneth Cameron at the time of his death must be held to form part of his executry estate, and the claimant, as executor foresaid, is entitled to be preferred to the fund in medio.”

Proof was allowed and led.

The proof showed that the deposit-receipts in their present form were not taken under any immediate apprehension of death. The first and second had been taken in the same terms, first, on 21st August 1891, and had been annually renewed in similar terms down to 1899. The third deposit-receipt, although it varied from time to time in amount and in the name of the payee, had been first taken on the same date as the other two, and had been similarly renewed. In the case of the deposit-receipt last mentioned the joint payee was at first the deceased's brother Donald, then on the latter's death Donald's son Kenneth, and on Kenneth's death Donald's son the pursuer and real raiser William Cameron.

The pursuer John Rose deponed that the deceased had offered him money in 1897 to build a house, but that he had refused to take it, and that when the house was being built the deceased had suggested some improvement, whereupon witness remarked, “You think I have money like shells,” and the deceased replied, “You have that but you don't know of it,” and went away laughing. He further deponed that the deceased before his death gave him £200 (which witness did not claim), to put in bank in their joint names, and said he was giving witness that £200, and added, “I am leaving you a few hundreds more than that.” He also deponed—“After his death, but before his funeral, Mrs Frank mentioned to me the sum of £1000 as having been left to me.”

Mrs Frank deponed that the deceased never showed her the deposit-receipts or communicated their precise terms to her, though impelled by curiosity she had looked in his desk and had seen them; that she urged deceased to make his will; that he said “he did not make a will, but that he had made out three bills in favour of three parties whom he was leaving his money to; he did not mention the names of the parties”; that on another occasion “he said he had made better than a will; he made three bills, which would save Government duty”; that on another occasion “he held up his hand and said he had made a bill with John Rose's name and his own, and my name and his own, and William Cameron's name and his own, and that we would get possession of it at his decease.” She further deponed, with reference to a later date—“I said to him to make things secure, so as not to be a bother after his death, and he said, Will you do as I tell you? I said, If I can I will. He said, Go to your banker for what is left for you and get your money, and let others do the same, for you don't need to tell anybody what is left for you.” In cross-examination the witness said—“He (the deceased) told me the reason why he did not make a will. He made these bills as he called them to save Government duty. He said this two or three times. He understood that we should take possession of it after his death.”

The pursuer William Cameron spoke to a conversation between him and the deceased when no witnesses were present. “He (the deceased) said, Yes, I am going to leave some money for you. I thanked him. I said it was very good of him to save so much money. From what he said I knew he had at least £1000. He did not say how he was leaving it … I had no conversation with him on any occasion about the money in the deposit-receipts.”

John Maclennan, miller in Stornoway, examined for the pursuers (real raisers), deponed that on various occasions the deceased had said that he had money to give to three parties of his own relations, and that he had sometimes mentioned John Rose, Mrs Frank, and William Cameron as the parties concerned. “When he spoke about these three people he willed his money to, he did not use the word will. (Q) What words did he use? (A) That they would get his money after his departure. He did not at that time say how much each of them would get; he did not say that one would get more than the other. I said he should remember Mrs Frank particularly. He said he would look to that.” He further deponed that he told Mrs Frank that deceased said “he was to leave some of it to her.”

Kenneth Cameron, Mrs Frank's brother, also examined for the pursuers and real raisers, deponed that in the beginning of June 1899 the deceased said to him—“There are ways of a man leaving his money to whom he likes without leaving a will; by making a will the Government wants so much duty … I am leaving my money for your sister and for John Rose and William Cameron.”

On 24th July 1900 the Sheriff-Substitute ( Shennan) pronounced the following interlocutor

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—“Finds in fact (1) that the late Kenneth Cameron, sometime carpenter at Lews Castle, Stornoway, died at Dantryfail, Achterneed, on 24th October 1899; (2) that in his repositories after his death were found the three deposit-receipts, Nos. 20, 21, and 22 of process (these were the deposit-receipts above mentioned), being respectively primo a deposit-receipt for £1000 in favour of the deceased and Mr John Rose, farmer, Strathpeffer (payable to either or survivor), secundo a deposit-receipt for £1000 in favour of the deceased and Mrs May Frank, Strathpeffer (payable to either or survivor), tertio a deposit-receipt for £650 in favour of the deceased and Mr William Cameron, his nephew (payable to either or survivor)—all bearing date 10th May 1899; (3) that the said John Rose, Mrs May Frank, and William Cameron claim the sums contained in the said deposit-receipts as belonging to them respectively in virtue of donation mortis causa; (4) that the said claimants have failed to prove facts and circumstances showing on the part of the deceased an intention of direct de præsenti donation: Finds in law that the sums contained in the said deposit-receipts were in bonis of the deceased at the time of his death, and fall to his executor: Therefore repels the claim for John Rose, Mrs May Frank, and William Cameron, and ranks and prefers the claimant Donald Cameron, deceased's executor, to the whole fund in medio.”

The claimants, the pursuers and real raisers, appealed to the Court of Session, and argued—The case of Blyth v. Curle, February 20, 1885, 12 R. 674, showed that the gift need not be made under immediate apprehension of death. The fact, therefore, that the deposit-receipts were dated five months before Kenneth Cameron died did not affect the validity of the donations. The case of M'Farlane's Trustees v. Miller, July 20, 1898, 25 R. 1201, decided that it was unnecessary to prove delivery of the deposit-receipt to the donee. In view of these decisions sufficient proof had been led to show animus donandi, and these claimants had made out their claim.

Counsel for the claimant Kenneth Cameron's executor were not called upon.