Scottish Court of Session Decisions

Lord M'Laren.—This is an action of multiplepoinding raised in the name of the Scottish Provident Institution to determine the competition as to the right to the sum assured by a policy of assurance effected with it. The claimants are George Brownlee, as representing his deceased wife, who is said to be assignee under a deed of gift, and Mrs Mary Scott or Robb, who claims under the double title of legatee under her husband's will, and alternatively as his widow and executrix-dative. The Lord Ordinary has held that neither the alleged deed of gift nor the testamentary paper are valid or effectual to pass the policy of assurance, and has sustained the claim of Mrs Robb in the character of executrix-dative.

The first question for consideration, in logical order, is obviously the validity of the deed of gift, because if this were effectual as a transfer of the right to the policy of assurance in the lifetime of the assured, it is unnecessary for the purposes of the competition to consider whether the writing purporting to be a testamentary gift was effectual, or capable of taking effect upon the sum assured.

The deed of gift is in these terms:—

“Bonnyfield, &c., 9th December 1901.—I, Joseph Robb, hand over my life policy to my daughter Elizabeth Scott Robb, now wife of George Brownlee, dairyman, Bonnyfield. (Signed) Joseph Robb. Witnessed by”—Then follow the names and designations of the witnesses.

The writing is not holograph, but it is subscribed by the granter and by five witnesses. Mrs Brownlee was a daughter of the granter. She and her husband were among the subscribing witnesses, and their attestation is open to the observation that they were interested parties. A third witness is said to have signed ex intervallo. As to the other two witnesses no objection is taken, and it is proved by their own statements, corroborated by other persons who were present, that they saw the granter subscribe, and that they were asked by him to witness his subscription. It is also proved that the deed of gift was delivered to Mrs Brownlee, the grantee, immediately after subscription, and that it remained in her possession during the remainder of her father's lifetime. It follows, in my opinion, that this must be taken to be a valid and a delivered deed, and the only question for consideration is, what is the import of the deed?

On behalf of Mr Brownlee it is urged that no formal words of assignment are necessary to transfer a moveable right or jus crediti, and that the expression “hand over” is equivalent to assign or make over. A modified statement of this proposition is that the words “hand over” are capable of operating as an assignment of the policy provided they were used with this intention; but that the intention must be evidenced by the deed itself taken in connection with the external circumstances in which it was prepared, executed, and delivered.

On behalf of Mrs Robb, the executrix, it is contended that the expression “hand over,” when used with reference to a policy of assurance, transfers nothing but the paper on which the policy is written, and that its only legal effect is to put the grantee into the position of custodier of the policy of assurance.

In my opinion the true principle of construction is that which I have indicated in the modified form of Mr Brownlee's argument; because, if no words of style are necessary to the assignment of a moveable right, it follows that effect must be given to the words of gift according to the intention with which they were used. I therefore proceed to consider whether there are legal grounds for inferring, in relation to this deed, that the words “hand over” were used with the intention of transferring the jus crediti in the policy.

It is made clear by the terms of the Policies of Assurance Act, 1867 (30 and 31 Vict. cap. 144), and relative schedule, that words purporting to assign the policy are sufficient for the purpose of assigning the right to the money assured. This removes one difficulty in the construction, but we have still to consider the meaning of the words “hand over.” It is proved that on the morning of the day when the deed was executed Mr Robb called on the witness James Girvan, a police-constable, who was supposed by Mr Robb to have more knowledge of business than he himself possessed, and asked Girvan to write a paper in favour of his daughter. If Girvan is to be believed, and I do not think his testimony is in any way impeached, he understood that what Robb wanted him to write was a gift to his daughter. Not being a lawyer, Girvan very sensibly confined himself to the business of an amanuensis, and wrote the paper in the terms dictated by Robb. Now, if this were a question as to a will, e.g., whether the paper in question was a will or a mere paper of instructions or mandate, I cannot doubt that it would be competent to interrogate the solicitor who prepared it as to the nature of the instrument which he was called in to prepare. We cannot have direct evidence of the granter's intention, i.e., as to the meaning of the words to which he has put his signature; but under the head of what are called “surrounding circumstances” we may at least begin by inquiring what kind of deed or instrument the granter proposed to make. In the next place we know that the granter meant some purpose which could only be carried into effect by a formal deed, because, instead of at once signing the paper which the constable had written for him, he made arrangements for executing it at a later hour of the day when witnesses should be present to attest his subscription. We have also the fact that, as Mr Robb was not in possession of the policy of assurance, he had previously obtained from the Scottish Provident Institution a certified copy of the policy which he thought would serve his purpose, and this certified copy, together with the deed of gift, was delivered to his daughter in presence of the witnesses. I cannot conceive that he would have taken all this trouble if his intentions were to transfer to his daughter only a worthless piece of paper; but, if his intention were to transfer the right to the policy, the precautions taken were just what the law required, except that he might have done the business a little better if he had not employed a constable to do the work of a solicitor.

It is further proved that when Robb handed the deed and the copy of the policy to his daughter he said,—“That is yours; keep it, and give it up to no one,” or words to this effect. I have some difficulty in acting on this evidence, because it comes very near to direct evidence of intention. But it is part of the res gestœ, and the words “that is yours” are entirely consistent with the notion that Robb believed he was giving something that was of value, and are quite inconsistent with the idea that he was making a gift of a piece of paper, or handing the paper over for safe keeping. But I think the best evidence of the intention to make a gift is the deed itself, because unless we hold that “hand over” is equivalent to assign we deny effect to the deed altogether, and that is a conclusion which can never be reached if the words used admit of an intelligible and effective meaning. I have only further to add that by a well-known rule of construction, which I give in the words of Lord Blackburn in the case of Fowkes v. Manchester and London Life Assurance and Loan Association, —“In all deeds and instruments the language used by one party is to be construed in the sense in which it would be reasonably understood by the other.”—I think that the granter's daughter when she received this deed would in reason understand it to mean that she was assigned into the benefit of the policy.

This being premised, it follows, in my opinion, (1st) that this was a transfer inter vivos and not a testamentary gift, because the deed was delivered to the transferee; (2nd) that no opinion which we may form as to the character, conduct, or motives of the granter of the deed can have any effect in controlling the right of the assignee, which is founded on written title followed by delivery of the writing.

Against the effect of the assignation it was argued that the transfer was incomplete because it was not intimated to the Assurance Company in Mr Robb's lifetime, but I think this argument is founded on a misapprehension. Intimation is necessary to give a real right to the subject assigned. All the authorities who speak to the importance of intimation limit its effect in this way, and I can see no reason for doubting that an assignment of a policy of assurance, like any other deed purporting to give a contract right, is binding on the granter and his heirs. The law is so stated in Bell's Principles, sec. 1462, and unless this were the law there never could be an effectual intimation, because intimation always presupposes a valid contract right which is to be notified to the debtor. It follows that the executrix being under obligation to warrant the assignment cannot set up her title in opposition to that of the assignee.

In the view I take of the case it is unnecessary to consider the question of the validity of the so-called will. It was signed by one witness at the time when the testator signed, and by another, the executrix, after her husband's death, and months after the execution of the will. This is said to be a good subscription on the authority of the case of Tener's Trustees. I am not quite clear as to the ground of decision in the case of Tener's Trustees, but if it supports the contention of the executrix in this case, I hope the question may be hereafter reconsidered by a larger Court; because I cannot admit that a witness who does not sign the deed is an instrumentary witness, or that the omission to sign is an informality of execution which can be corrected or supplied after the death of the maker of the deed.

I am of opinion that Mr Brownlee is entitled to be ranked and preferred in terms of his claim.

Lord Pearson.—The fund in medio is the sum due under a paid-up policy of insurance on the life of the late Joseph Robb; and the first and most important question is, whether the proceeds of that policy are in bonis

of the deceased, or were effectually assigned by him to his eldest daughter Mrs Brownlee, by the writing No. 7 of process, dated 9th December 1901. That writing bears,—“I, Joseph Robb, hand over my life policy to my daughter Elizabeth Scott Robb, now wife of George Brownlee, dairyman, Bonny field.” The writing is duly attested; and it was delivered to Mrs Brownlee, along with a certified copy of the policy, and remained in her possession until his death. The question is, whether the terms of the writing import an assignation of the policy, or are merely an expression of the fact that a copy of the policy was handed to Mrs Brownlee. Taking the question as one of the construction of the words used, I do not think it can be maintained that they are not capable of the larger construction. Nor do I think that it aids the solution to say that they are capable of the narrower construction, unless it can be made out either that that is the sound construction in law, or that the words used are so ambiguous that it is impossible to say what they mean. The Lord Ordinary says the words have in themselves no defined significance; and it is true that they are not words of art such as lawyers would use. The writing was drafted and written out by the village constable, who repeated in the writing the language used to him by Mr Robb. Now, in my opinion the words used are not only capable of importing the transfer of the beneficial right, but they are apt words to do so according to their common colloquial use by ordinary Scotch people in that position in life. I am convinced that a large majority of such people, on a perusal of the writing itself, would at once attribute that meaning to it. That to my mind is conclusive as to the sense in which it was intended by the granter and received by the grantee, unless perhaps it could be made out by competent evidence that there were surrounding circumstances which compelled a different construction. But, so far is this from being the case, that I think all the surrounding circumstances (assuming that it is competent to regard them) strongly support the view I have expressed; but as your Lordship has fully treated that aspect of the case, I content myself with expressing my concurrence in what you have said, and also as to the alleged necessity for intimation. But as I have said I hold that according to the natural and ordinary construction of the words used, as these would be construed by the parties concerned, they are apt and sufficient to pass the beneficial right in the insurance policy. I am further of opinion that no case is made out for regarding the assignation as a gift mortis causa, or as being affected by the operation of the will, if the will is to stand.

Lord Ardwall.—In this case I have the misfortune to differ from the views expressed by your Lordships.

This action of multiplepoinding has been raised in name of the Scottish Provident Institution for the purpose of determining who is entitled to the proceeds of an insurance policy on the life of the deceased Joseph Robb.

The widow of the deceased claims it now only in the character of executrix-dative of her husband; Mr George Brownlee claims it as executor of his wife, who was a daughter of the deceased, and who, he maintains, acquired right to the policy by a valid assignation executed by the deceased. The deed by which it is maintained that the assignation was accomplished in these terms:—“Bonnyfield, &c., 9th December 1901.—I, Joseph Robb, hand over my life policy to my daughter, Elizabeth Scott Robb, now wife of George Brownlee, dairyman, Bonnyfield. (Signed) JOSEPH ROBB.” Then follow the names and designations of the witnesses.

I may observe that in the print of documents the claimant Mr Brownlee thus titles this document,—“Deed of Gift,” but these words do not appear on the document itself, and are apt to be misleading as begging the question. I prefer to call it a deed of transfer, and the first and most important question in the case is whether it operates as a valid assignment of the rights under the contract of insurance so as to defeat the rights of the deceased's legal representatives, who, but for it, would be entitled to the proceeds of the policy in terms of the destination contained in the policy itself.

The Lord Ordinary has repelled Mr Brownlee's claim and sustained Mrs Robb's, and I am of opinion that his judgment is well founded.

A proof at large before answer was allowed and led, but except for the purpose of laying before the Court the circumstances under which the said deed was made and delivered, I am of opinion that the parole proof, so far as regards the point now under consideration, is incompetent and irrelevant. It was pleaded for the claimant Brownlee that this was a donation, and that a donation could be proved by parole evidence, and the Court was referred to a number of cases regarding deposit-receipts in support of this view. Parole evidence undoubtedly is admissible for the purpose of shewing whether a sum of money or a deposit-receipt, which is practically in the same legal position, has been handed by one person to another animo donandi or not, but when it is maintained that a donation has been constituted by a written deed, I am of opinion that the question whether such donation was constituted or not depends on the construction of the deed. I think it is as incompetent to refer to parole evidence in order to shew what intentions the grantor expressed to the donee or other people, as it would be to refer to similar evidence for the purpose of construing a contract that had been reduced to writing or of interpreting the will of a person deceased.

I shall now proceed to consider whether the deed of transfer, on a sound construction thereof, does or does not constitute a valid assignation of the policy in question.

It is common ground that according to the law of Scotland the execution and delivery of an assignation is the appropriate method of transferring a contract of assurance contained in a policy, and all sums of money due or to become due in respect thereof. The mere corporeal handing over of the paper on which the policy is engrossed, or a certified copy of it failing the principal, gives no right to the contract of assurance contained in a policy, or any sums of money due or to become due under that contract. This is trite law in Scotland, though apparently a different rule prevails in England. See Scottish Provident Institution v. Cohen .

What purports to be handed over in the deed of transfer is “my life policy.” Now, while I agree with the Lord Ordinary that, having regard to the terms of the Transference of Moveable Property Act, 1862 (25 and 26 Vict. cap. 85), and the form for the assignation of policies introduced by the Policies of Insurance Act, 1867 (30 and 31 Vict. cap. 144), it is competent to assign the contents of a policy without saying anything about the sums due or to become due under it, I must yet observe that the words “my life policy” would quite aptly describe the corporeal document on which the contract of assurance was written, and might apply to it as well as to the rights which the policy represented.

Coming to the alleged words of assignation, which are simply “hand over,” the question arises whether these words in themselves are words of assignation, and are to be held as equivalent to “make over” or “assign.”

In the first place, it must be observed that the phrase “hand over” is capable of two meanings; the first is the primary, simple, and literal meaning, and signifies simply to pass a thing from the hand of one person to that of another: it has also, however, undoubtedly come to have a secondary or figurative meaning, namely, to assign or transfer. This meaning most frequently attaches to the phrase when used as a merely colloquial one, as for instance, when we speak of a father handing over his estate or his business to his son. Now, prima facie, the simple and primary meaning of a phrase is to be accepted as its true interpretation unless there is something in the context or in the circumstances to shew that it ought to bear its secondary meaning. So far, however, from that being so in the present case, it appears to me that a consideration of what actually was done at the time this alleged assignation was made and delivered is entirely in favour of the primary meaning being adopted as the true one, because what was done was this, that at the time the so-called deed of gift was delivered a certified copy of Joseph Robb's life policy was de facto handed over to his daughter. As we have seen, the words “my life policy” are quite appropriate to describe the document itself, and I therefore arrive at the conclusion that this deed of transfer merely records in writing what was done at the time, namely, the handing over of his life policy by Joseph Robb to his daughter. Accordingly I am of opinion that in the deed under consideration the words “hand over” must receive their primary and literal meaning, there being nothing inconsistent with that meaning in the remainder of the deed, and there being everything consistent with it in what was actually done at the time. The cases of Strachan v. M'Dougle and the Caledonian Insurance Company v. Beattie, where the word “hand” was used, were founded on by the claimant Brownlee, but an examination of these cases shews that the intention to make an assignation clearly appeared from the terms of the documents of transfer, from which it was apparent that nothing less than a transference of the policy and of the rights under it was meant.

Some difficulty, however, is presented by the fact that the deceased thought it necessary, not only to hand over the policy, but at considerable trouble to record the fact in a carefully witnessed deed. It was argued that his having done so raises a presumption that he must have intended something more than a mere handing over of the corpus of the policy. I think that, on the assumption that Joseph Robb was acting honestly in the matter, and not with intent to deceive his daughter or her husband as the Lord Ordinary holds, the answer to this difficulty is, that at the time he handed over the policy and executed the deed in question he really believed that in doing so he was transferring to his daughter not merely the policy but all the rights under it, and he therefore thought it sufficient to hand over the document and record the fact in his deed without any words which in law are sufficient to import an assignation. Obviously this does not aid the reclaimer's case, because although what Joseph Robb did may have been done with the intention of making an assignation in favour of his daughter, yet if what he did is not sufficient in law to effect such assignation, no valid transference of the right to the contract in the policy and the sums that might become due thereunder was completed.

I therefore arrive at the conclusion that, assuming the deed of transfer to represent an honest transaction, it amounts to nothing more than this, that the deceased handed over the corpus of the policy to his daughter; and that cannot give her or her executor a good title to the proceeds of the policy in competition with those who, failing an assignation, are described in gremio of the policy as the parties having right to it. In other words, the title to the incorporeal rights secured by the policy was not transferred from the deceased and his legal representatives to Mrs Brownlee by the delivery to her of the policy and a deed recording that fact.

But if I am mistaken in my opinion as to the admissibility or relevancy of parole evidence in this case, and if the evidence of the deceased's true intentions is to be gathered from evidence of what he is reported to have said in regard to his policy of insurance to Police-constable Girvan, the deceased Mrs Brownlee, and other people, I think it is plain that the whole parole evidence in the case, so far as bearing on the intentions of the deceased with reference to his life policy, must be examined. That evidence shews that the original policy was all along in the custody of Mrs Robb from the day she got it from the insurance company till she took it to the insurance company after her husband's death. It further appears that the deceased knew that the policy was in his own house and under his wife's control all along, and that he obtained the certified copy he got from the insurance office by telling them a falsehood. All this, while spoken to by Mrs Robb, is established by the actual facts of the case as to the custody of the policy. The story told by neighbours of the claimant Brownlee about the policy being taken from Mr Robb's pocket by Mrs Robb seems to me to be manufactured evidence. Then Mrs Robb says that her husband told her that he had given the paper he had got from the insurance company to Mrs Brownlee, but that he said that “they would never get the money, for it was no use to them,” the words used being, “Don't put yourself about, old one, they will never get the money.”

She further says that when he signed the will he said that she was all right as to getting the assurance money. This last piece of evidence in corroborated by James Hay, who says that when Joseph Robb on his deathbed was asked by his wife what about the insurance, he said “Oh, you will be getting that,” and she replied, “You had better put it down,” and there upon the last words to that effect were added to his will. Walter Robb also corroborates this evidence, and says that his father told him to write down the words, “also insurance papers go to Mary Scott or Robb.” This last piece of evidence confirms the view I have already expressed to the effect that Mr Robb regarded the possession of the insurance papers as an important matter in claiming the insurance money, and thought that so long as his wife had the original policy she was quite safe, and that the handing over of the copy of the policy to his daughter did not matter.

I agree with the Lord Ordinary that the whole of the deceased Mr Robb's conduct with regard to the policy of assurance and Mrs Brownlee was attributable to the fact that he found it convenient, during or after some of his drinking bouts, to escape from his wife's supervision and reproaches by going to the Brownlees, and that he went through the solemn farce of executing a deed purporting to hand over his insurance policy to Mrs Brownlee merely for the purpose of ingratiating himself with her husband, who, according to the Lord Ordinary's opinion, was a sort of man who would not be likely to give anything for nothing. But all along he believed that the interests of his wife and the rest of his family were secured by the former possessing the policy of assurance which at first had been issued to him by the insurance office.

I do not go further into the evidence, as I adopt entirely the Lord Ordinary's remarks upon it and upon the surrounding circumstances. The matter could not, I think, be better put than by the Lord Ordinary when he says that “Robb took the expedient to keep himself fair with Brownlee and his wife, on whom he was sometimes dependent, without, as he thought, putting his one asset beyond his control, or defeating his wife's legitimate claims, by pretending to the insurance association that he had lost his policy, and so getting a duplicate, which he made the basis of a somewhat ostentatiously formal gift to Mrs Brownlee, while knowing all the time that the policy was not really lost, but was in his wife's keeping, and never intending to divest himself of the control of it.” Accordingly, on the assumption that parole evidence is competent in this case to explain the intentions of the deceased, I arive at the same conclusion as I do on the deed itself, that Mr Brownlee's claim must be rejected.

With regard to the will, it is unnecessary to go into that matter, as counsel for Mrs Robb has intimated that he is satisfied with the Lord Ordinary's interlocutor and content to accept the policy as forming intestate succession of the deceased Joseph Robb, and that his client should administer it as his executrix-dative.

I accordingly am of opinion that the Lord Ordinary's decision was well founded.