Scottish Court of Session Decisions

On 27th July 1903 William Simpson Hunter, painter, Glasgow, was killed in a railway disaster at St Enoch's Station, Glasgow, while a passenger in a train which was wrecked. At the time of his death the deceased had in his possession the current number of two weekly newspapers, Answers and Tit-Bits, each containing an insurance coupon which entitled the person or persons adjudged by the editor of the paper to be the deceased's next-of-kin to sums of £1000 and £100 respectively.

Both coupons were in similar terms, and it is sufficient for the purposes of this report to refer to the coupon contained in Answers, which was as follows—“£1000 Free Insurance.—In the event of any person having the current number of Answers on him or her at the time, being unfortunately killed by an accident in the United Kingdom to any train in which he or she may be travelling as a passenger, we have made arrangements whereby the person adjudged by the Editor of Answers to be the next-of-kin of the deceased will receive One Thousand Pounds,… provided notice in every case be given to the Editor within seven days from the occurrence of the accident The person or persons who shall he adjudged by the Editor of Answers to be the next-of-kin of the deceased shall be the only person or persons entitled to receive and give a valid discharge for the money.”…

Margaret Farquhar Hunter, a sister of the deceased, duly notified the Editor of Answers of her brother's death, and claimed payment of the £1000 through her agent, who wrote, inter alia, as follows:—“We observe that it is you who are to judge who is the next-of-kin entitled to the insurance money. The deceased was forty years of age. He has a father alive and three brothers besides our client, who was his only sister. Both were unmarried, and the deceased and his sister had lived for many years in family together, and by his death the sister has lost her means of support. The other members of the family did not live with our client.”

Miss Hunter's claim was followed by a claim from one of her brothers. The course adopted by the editor of Answers is conveniently described in the following excerpt from a subsequent number of that paper:—“It was evident that this was a case in which the editorial discretion would have to be used in deciding as to whom the money was to go. The legal formalities, such as the preparation of affidavits of witnesses, &c., took some time, but] in the end it was found that, as had been stated by Miss Hunter's solicitors, she had been to a large extent dependent on the earnings of the deceased man for her support, and that, to put the matter briefly, she had been the principal sufferer by her brother's death. Upon this we had no hesitation in adjudging Miss Hunter the next-of-kin of the deceased man, and we lost no time in intimating that decision to our agents and Miss Hunter's solicitors. At the same time we advised the gentleman who had preferred the claim on behalf of the brother that we had so decided.”

As the result of these decisions the £1000 was paid to Miss Hunter by the proprietors of Answers in August 1903. For similar reasons and under similar procedure the £100 was paid to her by the proprietors of Tit-Bits in September 1903.

Thereafter in April 1904 the present action was raised by David Hunter and Alexander Hunter, both labourers, Glasgow, brothers of the deceased William Simpson Hunter, against their sister Miss Hunter for £275 each, being a fourth part of the two sums of £1000 and £100.

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At the date of raising the action the defender, the pursuers, and one other brother were the whole next-of-kin of the deceased, who died unmarried and intestate.

The pursuers averred—“The said sums for which the deceased William Simpson Hunter had insured his life by the purchase of Answers and Tit-Bits formed part of and, it is believed, the whole of the estate left by him, and in respect that he died unmarried and intestate the pursuers are entitled each to one-fourth part thereof. The power of selection conferred by the terms of said coupons on the editors has reference solely to the discharge of the insurers, and has no other effect.”

The pursuers pleaded—“(1) In respect that the defender is in possession of the whole estate left by the said deceased William Simpson Hunter, and has refused or delays to get herself decerned executrix-dative, she is barred from insisting in her objection to the pursuers' title to sue. (2) The defender having intromitted with the estate of the deceased William Simpson Hunter, is bound to furnish a statement of her intromissions to the pursuers as next-of-kin of the deceased. (3) The pursuers being two of the next-of-kin of the deceased William Simpson Hunter are entitled to decree as craved. (4) In respect that the said sums of £1000 and £100 were paid to the defender under contracts of insurance entered into by the deceased William Simpson Hunter upon his life as condescended on, the said sums belong to the estate of the deceased, and the pursuers are entitled to decree as craved. (7) On a sound construction of said contracts of insurance, the pursuers' interest in the sums insured is not affected by the selection by the editor of a person to whom payment may be made, and from whom a discharge may be received by the insurer.”

The defender pleaded—“(1) No title to sue. (2) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons. (3) The defenders having been adjudged by the editors of Answers and Tit-Bits, whose discretion is absolute, as entitled to payment of the amounts insured, is not bound to divide the said amounts according to the rules of intestate succession. (4) The amounts insured having been paid to the defender as an individual, she is not liable to account for her intromissions with said amounts, and ought to be assoilzied. (5) The defender not having had any intromissions with the estate of the deceased, or in any event not being liable to account therefor, should be assoilzied.”

On 2nd July 1904 the Lord Ordinary ( Kyllachy) assoilzied the defender.

Opinion.—“In this case the contentions of both parties have been particularly well stated. Indeed I have seldom seen a case so well stated both on record and in argument. The question is rather a novel one, and I have endeavoured to consider it on its merits, as well as with reference to the decision in the case of Law v. George Newnes, Limited, July 17, 1894, 21 R. 1027, 31 S.L.R. 888, which prima facie at least seems to rule it.

“My view is this, and I think it is fairly clear that the question depends upon this, whether the two funds in question were in bonis of the deceased at his death. If they were, I do not doubt that, although paid over to the defender (who was only one of the next-of-kin), she (the defender) would have been liable to account as for money received on behalf of the estate. I do not say she would have been liable to account to the pursuers, but to anyone whether belonging to the family or not, who had obtained the office of executor of the deceased. On the other hand, if the money was not in bonis of the deceased I do not see how there can be any liability to account to anybody. There could, ex hypothesi, he no liability to account to the executor of the deceased as such, and as regards the pursuers, the defender has no contract with them, nor did she receive the money under any contract to pay to them.

“Now, this being so, what is the test as to whether these moneys were in bonis of the deceased? The test I think is and must be this, could the pursuers, supposing they had been decerned and confirmed executors of the deceased, have sued—I mean successfully sued—the debtors under the coupons—the two newspaper proprietors for payment? And as to that I do not see how there can be any doubt, at all events if the case of Law v. Newnes was, as I must hold it was, well decided. For the judgment in that case, a substantially similar case, was that it was a condition recedent of the debtor's obligation, a condition-precedent of the right to sue under it, that the person suing for payment should he clothed with a right to sue conferred by the editor of the paper, the editor of the paper in each case being empowered to select the recipient of the bounty. The obligation is to pay to such person as shall have been adjudged by the editor of the paper to be the next-of-kin in the one case and the nearest relation in the other. And, of course, if that is so, it is quite inconsistent with the moneys being in bonis of the deceased. The obligation at its best is an obligation not in favour of the deceased or in favour of the deceased's executors, but in favour of persons who are to be selected by the editors as possessing the requisite character, the grounds of selection, whether good or bad, being immaterial if in point of fact they are honest.

“The only doubt I have had is whether I ought not to have the facts ascertained by a proof—I mean the facts in connection with the editors' adjudication. But it did not appear to me that there was any real dispute between the parties that the editors proceeded as set out in the defences. What occurred is, I see, set out at length in one of the newspapers which was used at the discussion, and it appears that the two editors both arrived at the same result after hearing both parties, coming both, whether they are right or wrong, to the conclusion that the proper person to receive the benefit was the defender, the deceased's sister, who had lived with the deceased and had the main interest in his life.

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“I think, therefore, that the defender is entitled to absolvitor, with expenses.”

The pursuers reclaimed, and argued—The question involved in the case of Law v. George Newnes, Limited, July 17, 1894, 21 R. 1027, 31 S.L.R. 888, was whether a newspaper having undertaken an obligation such as that undertaken by Answers could be compelled to pay twice; that case did not affect the present. The deceased when he purchased Answers entered into a contract with the proprietors of the nature of an insurance policy, the sum received by the defender under that contract was in bonis of the deceased, and she had received it as trustee for all his next-of-kin— Jarvie's Trustees v. Jarvie's Trustees, January 28, 1887, 14 R. 411, 24 S.L.R. 299; in re Scottish Equitable Life Assurance Society [1902], 1 Ch. 282. The editor had no power of selection as to the beneficial interest in the sum paid, but only as to the party from whom he was to get a discharge; even if he intended the defender to have the money as her own his intention did not affect the legal result.

Argued for the respondent—The sum in question was never in bonis of deceased; no title thereto was conferred upon anyone until the editor made his selection— Law v. George Newnes, Limited cit. sup., The editor had selected the defender in good faith, and in knowledge of the claims of other next-of-kin. The defender was not the debtor in the obligation to pay, and no action lay against her.