Scottish Court of Session Decisions

The Scottish Provident Institution, Edinburgh, as pursuers and nominal raisers, brought an action of multiplepoinding to decide the question who was entitled to a sum of £160, 6s., being the sum with bonuses contained in a life assurance policy on the life of Joseph Robb, flesher, Edinburgh, who had died on 8th March 1905.

George Brownlee, dairyman, Davidson's Mains, as executor of his deceased wife Elizabeth Scott Robb or Brownlee, the real raiser and defender, claimed in virtue of the following deed (hereafter called No. 7 of process):—

Bonnyfield, Barnton, near Cramond Brig,

Monday, 9 December 1901.

I, Joseph Robb, hand over my life Policy to my Daughter Elizabeth Scott Robb, now wife of George Brownlee, Dairyman, Bonnyfield Signed By Joseph Robb

Witnessed by Elizabeth S. R. Brownlee, Bonnyfield, Cramond Brig

Witnessed by George Brownlee Bonnyfield, Cramond Brig

Witnessed by George B. Johnstone, Roseneath St., Edinburgh Foreman Mason

Witnessed by David Smilh, RoseStreet, Edinburgh, Barber

Witness James Brooks, 41 Dean-St., Edinburgh, Butcher's Assistant.”

Mary Scott or Robb, the deceased's widow, also claimed ( a) qua executor of her husband, and ( b) in virtue of an alleged will (hereafter called No. 16 of process) in the following terms:—“Gold watch and chain to John Scott Robb, and gold ring to Walter Scott Robb, and Two horses and two lorries and all the things in the stable under the name of Brownlee to go to Mary Scott Robb. Also insurance papers to go to Mary Scott Robb. Joseph Robb.” 5 1.1904 1904 5/1/1904.

Witness James Hay, witness,

6 Valleyfield Street, Edinburgh.

Mary Scott Robb, witness,

23 Spittal Street, Edinr.

Edinburgh.”

The facts are given ( cp. also opinions of Lords M'Laren and Ardwall) in the opinion ( infra) of the Lord Ordinary ( Johnston), who on 30th July 1906 pronounced this interlocutor:—“Finds that the alleged deed of gift, No. 7 of process, did not validly or effectually transfer the deceased Joseph Robb's policy of insurance with the Scottish Provident Institution to the deceased Elizabeth Scott Robb or Brownlee, wife of the claimant George Brownlee, either as an inter vivos or a mortis causa assignation or donation: … Finds that the alleged will of the late Joseph Robb, No. 16 of process, was improbative at the date of his death, and was not rendered probative by the signature of Mrs Robb, his widow, and substantially his universal legatory, after his death, and therefore that the said alleged will, No. 16 of process, is invalid and ineffectual: Finds that the proceeds

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of said policy of insurance were intestate succession of the late Joseph Robb, and fall to be administered by the claimant Mrs Robb as his executrix-dative; therefore sustains the claim for her as executrix-dative. …”

Opinion.—“… [ After narrating origin of action supra] … The action, as things stand on the record, might be disposed of by determining the question merely of the validity of the alleged assignation in favour of Mrs Brownlee, as if that document is not effectual as an assignation Mrs Robb, as executrix, must take the fund for the purposes of administration. But the case is really intended to raise the whole question of the proper distribution of the proceeds of the policy, which in direct competition with Mrs Brownlee's executor are claimed by the widow under an alleged will of the deceased, No. 16 of process, and in which, in any view of the alleged assignation in favour of Mrs Brownlee, the widow claims her legal rights. Though the record is not well drawn to raise all the questions at issue, it is only fair to the parties interested in this small succession, to decide if possible all questions among them. And though the sum at stake is small, these questions present considerable difficulties both in fact and in law, and particularly in fact.

I shall deal with the questions in fact first. Mr Robb, who had been a flesher in Edinburgh, and was apparently in his later years a small carting contractor, died on 8th March 1905. For some years he had been addicted to drink, which had led to periods of separation between himself and his wife and to disagreements between himself and other members of his family. So far as the facts can be ascertained from the loose statements of the witnesses, a serious quarrel between Mr and Mrs Robb took place in July 1899, which led to Mrs Robb going out to Davidson's Mains, where her daughter Elizabeth, who in 1895 had married George Brownlee, then resided. She was followed by her husband, and a scene there occurred which justifies my saying that it is no discredit to Mrs Robb or her daughter Josephine if their recollection of the events of the afternoon is indefinite and uncertain. But there occurs here one of the discrepancies between the claimants' witnesses for which it is very. difficult to account. Mrs Jane Wallace and her son James, witnesses for the defender and real raiser, assert that when the deceased was struggling with some men who were trying to control him, Mrs Robb took from his pocket papers assumed to be his policy of insurance, gave them to her to keep for the night, and took them away next morning. On the other hand Mrs Robb and her daughter Josephine both assert that no such thing occurred, and that it could not have done so, as the policy was never out of a desk in her possession both before, during, and after the periods when her husband left her.

As I gather, this episode in 1899 did not lead to an immediate separation between Mr and Mrs Robb. But his habits did induce such separation from about October 1901 to the middle of June 1902, and again from July 1904 till his death on 8th March 1905. During this first period of separation the deceased, on the allegation that he had lost the original of his policy of insurance, obtained on 3rd October 1901 a certified copy thereof from the Scottish Provident Institution. He then, while more or less living with his daughter Mrs Brownlee, on 9th December 1901 executed the alleged deed of gift, No. 7 of process. This is spoken to by James Girvan, police constable, Davidson's Mains, whose evidence is very clear and distinct. He speaks to its preparation and to its execution with greater formality than under the circumstances was to be expected, and he makes it quite clear that, whatever the intention of the deceased and the virtue of the document he executed, he was not, ostensibly at least, giving his daughter the custody only of the certified copy policy. He indicated that he was due her recompense for services and attention, and in handing the paper to Mrs Brownlee he said, ‘That is yours, keep it, give it to no “one.”’ In this evidence Girvan is otherwise supported. With the document No. 7 of process the certified copy of the policy of insurance was also handed over to Mrs Brownlee and retained by her till after her father's death. She herself only survived him a few months. The document No. 7 of process bears—“… [ quotes, supra] …” It is not disputed that it was signed by the deceased and attested by Mrs Brownlee and her husband and three other persons.

Mrs Robb's evidence is that her husband imposed upon the Scottish Provident Institution and obtained from them the certified copy of the policy knowing perfectly well not only that the policy was not lost but where it was all the time; that he admitted the imposition, and told her that what he had done would never avail the Brownlees.

The last episode referred to in the proof was the execution of the deceased's will, No. 16 of process, on 5th January 1904. There is no doubt that it was written by the deceased's son Walter, then a lad of thirteen or fourteen, to his father's dictation, while his father was still in the house recovering from a bout of drinking; that it was signed by his father, and witnessed on the spot by James Hay, a young lad of about seventeen, a friend of young Walter Robb. No other witness signed at the time, or was present at the execution, but on the advice of her agent, Mrs Robb, who had been present at the execution, signed it as a second witness after her husband's death. The assertion of the two lads, James Hay and Walter Robb, that the document was witnessed by Mrs Robb shortly after its execution is contrary to that of Mrs Robb and her agent, and is quite inexplicable. But I cannot attribute to either of the lads concerted falsehood. On the contrary, their demeanour led me to think that their evidence was truthful to the best of their knowledge and apprehension. But it is proved that the important

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words which terminate Mr Robb's alleged will, viz., ‘Also insurance papers go to Mary Scott Robb,’ were not the spontaneous dictation of the deceased, but were suggested by Mrs Robb, and though written before execution were written after a little interval. As, however, the will remained from the date of its execution in Mrs Robb's possession, though I believe the above to express the truth of the matter, it must always remain open to the suspicion that these words were written by young Robb, on his mother's suggestion, after the will was signed, if not after the deceased's death. And to this suspicion I admit that the writing itself, and the collocation of the words in question with the signature lend some support.

I admit to having great difficulty in coming to a satisfactory conclusion as to the truth of the facts, bearing both on the alleged assignation and the alleged will. I did not at the time see cause, and I do not now, to suspect the truthful intention of any of the witnesses notwithstanding the apparent discrepancies, though I think that their observation and recollection are sometimes at fault, and I am satisfied that something is wanted, which can only be inferred, to explain the true state of matters.

I was struck at the time of his examination with the appearance of George Brownlee in the witness box; I did not doubt the general truthfulness of his evidence, so far as it went, but I was distinctly impressed by his demeanour, and gauged him to be a dour, domineering, and grasping man. The following passage in Mrs Robb's evidence both conveys my ab ante impression, and at the same time gives, I am convinced, a clue to the inner history of the transactions with which we are concerned, viz.—‘(Q.) How did he come to be talking to you about the insurance policy? (A) He was calling Brownlee everything that was bad, for he was a man he did not like, and he said, “Don't be frightened, old one, Brownlee will never get my insurance money.”’

I am convinced that the policy being the only asset that the deceased had, was during his lifetime a bone of contention among those connected with him, and at the same time a convenient and useful instrument in the old man's hands; that he found himself liable to fall between two stools—his wife on the one hand and his daughter and her husband Brownlee on the other; that he had no real quarrel with or animosity to his wife, who had borne him I think thirteen children, of whom six or seven were alive, and against whom there is no imputation except that in the end of the day she found his intemperate and violent habits past bearing; that he was under pretty rough pressure from Brownlee; and that he 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. I may add that I have no belief in, though I cannot explain, the story of Mrs Robb having taken from her husband's pocket in 1899 the policy papers—I believe it to have been to her husband's knowledge in her custody throughout.

In these circumstances the following questions arise:—

“ First, What was the effect of the so-called deed of gift No. 7 of process in Mrs Brownlee's favour?

It bears—‘I, Joseph Robb, hand over my life policy.’ In one view it has reference only to the actual document handed over unico contextu, which was not Joseph Robb's life policy but only a certified copy. In another it is an informal assignation of what by extrinsic evidence can be proved to have been his only life policy, and therefore the one intended to be transferred. In the view which I take of the evidence, and the inference which I draw from it, I accept the former interpretation, and therefore conclude that the so-called deed of gift was never meant to carry and did not carry the real policy or its contents. But it is right that I consider also the opposite view. Assuming that the deceased intended by ‘life policy’ to indicate his real interest under the insurance (and under the insurance it was ‘his heirs, executors, administrators, and assignees’ who were to be entitled to payment), what is the effect of the document? Was it an assignation? Was it an inter vivos or a mortis causa assignation? And was the transference completed by its delivery with a copy of the policy, and intimation made subsequently to the death of the assured?

An assignation transfers ‘the right to receive, and if necessary to raise action or suit for recovering from a third party a sum of money due on a bond’ or other obligation—Bell's Lectures on Conveyancing, title II, chap. 1. Short forms are introduced by the Transference of Moveable Property Act 1862 (25 and 26 Vict. cap. 85), and a special form for the assignation of policies by the Policies of Insurance Act 1867 (30 and 31 Vict. cap. 144), from both of which it is clear that it is competent to assign the contents of a ‘policy of assurance’ by merely assigning the policy without saying anything about the sums due or to become due under it. It is also I think clear that the word ‘assign’ or other vox signata need not be used. ‘The letter of the late Robert Strachan to her (Miss MacDougle) and the delivery of the policy I have no hesitation in considering to be equal to an assignation,’ per Lord Balgray in Strachan v. MacDougle, 13 S. 954; but then the letter clearly disclosed the purpose of ‘sending’ the policy. And the same may be said of the letter in Caledonian Insurance Company v. Beattie, 1898, 5 S.L.T. 349, where the same words as

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here, ‘I hand you,’ were used. And the question is, do the terms used in the present case, which in themselves have no defined significance, disclose a purpose of assignation or transfer of the right to receive the proceeds, and if they do not, can they be supplemented by parole evidence? The former they certainly do not. As to the latter, had the same thing been expressed verbally, no supplementary proof of intention would have raised the verbal expression into an effectual assignation, at least in Scotland— Scottish Provident Institution v. Cohen & Co., 16 R. 112, and I do not think that the fact that the words which if spoken could not have been supplemented so as to make them effectual, when written would be any more effectual or could be permitted to be explained by extrinsic evidence. But even if I could admit extrinsic evidence, for the reasons already explained I do not think that the evidence led is sufficient to satisfy the onus on the party standing upon the alleged deed of gift to prove that assignation was intended. I come therefore to the conclusion that the document No. 7 of process cannot be regarded as an assignation. I am therefore relieved from determining the questions whether it was an inter vivos or mortis causa assignation, and whether the transference was completed.

Second, It was maintained that even if the document No. 7 of process was a mortis causa assignation or donation it did not affect the legal rights of the widow and children; and

Third, It was maintained, on the same assumption, that the mortis causa donation was revoked by the document No. 16 of process, whether that document was valid as a will or not.

These questions also in the view which I take I do not need to consider.

Fourth, There remains the question whether the document No. 16 of process is a valid will. I have come to the conclusion that it is not. At the date of Mr Robb's death the document in question bore the signature of only one witness, and was therefore improbative. After his death, on the advice of her agent, Mrs Robb signed as an additional witness. At one time it was held that women, particularly married women, were incapable of acting as instrumentary witnesses, and they were not in use to be accepted as such. But that view and practice has been departed from, and in the case of many deeds a wife may be a witness to her husband's signature, but it is another thing to accept her signature as attesting a deed where she herself is interested, and here she is substantially the universal legatory. I think that even had she signed as a witness at the time of execution, the validity of the attestation would have been more than doubtful, but I think that it is quite impossible to admit her signature as witness ex post facto as validating a deed entirely in her own favour which was left improbative by her husband at his death. I therefore think that the document No. 16 of process was invalid and ineffectual as a will.

The result therefore is that the proceeds of the policy of insurance are intestate succession of the deceased Joseph Robb, which fell to be administered by Mrs Robb as his executrix for the benefit of his representatives—that is, of his widow and children. Mrs Robb will take her jus relictæ, and his children who survived him the legitim and dead's part.”

The claimant George Brownlee reclaimed, and argued—The deed of December 1901 was an assignation in favour of the late Mrs Brownlee of the assurance policy — Policies of Assurance Act 1867 (30 and 31 Vict. c. 144), secs. 1 and 5, and Schedule; Strachan v. M'Dougle, June 19, 1835, 13 S. 954; Carter v. M'Intosh, March 19, 1862, 24 D. 925, per L.J.C. Inglis, at p. 933; Caledonian Insurance Company v. Beattie, March 5, 1898, 5 S.L.T. 349. The words “hand over” were words of alienation, being equivalent to “assign”—at least the words admitted of being read in that sense, and the parole evidence showed that the assured intended the deed to operate as a donation. It was immaterial that there had been no intimation during the lifetime of the assured. Intimation was not necessary to obtain a right which would be effectual against the cedent or his representatives, because such parties could not dispute the cedent's deed—Bell's Prin., sec. 1462; Lillie's Trustees v. Gray and Others, February 5, 1828. 6 S. 489.

Argued for the respondent—There was a strong presumption against donation, and the deed of December 1901 could not be held to be a deed of gift if the words reasonably admitted of another construction—Ersk. iii, 3, 92; Dickson on Evidence, sec. 158; Jamieson v. M'Leod, July 13, 1880, 7 R. 1131, 17 S.L.R. 757; Sharp v. Paton, June 21, 1883, 10 R. 1000, 20 S.L.R. 685; Dawson v. Mackenzie, December 8, 1891, 19 R. 261, 29 S.L.R. 226. Here the words “hand over” were quite consistent with the view that the granter merely desired to preserve evidence of the fact of the copy policy being handed over. (2) Parole evidence to show the deceased's intention was incompetent. But if admitted the evidence must be read as a whole and showed that donation was not intended. (3) If the deed were an assignation it had not been intimated until after the death of the assured, and his executrix was preferable to the assignee— Strachan v. M'Dougle, cit. sup.; United Kingdom Life Assurance Company v. Dixon, July 7, 1838, 16 S. 1277; Bell's Lect., bk. ii, tit. 2, cap. 1. (4) If the deed constituted a gift at all it was a mortis causa gift. A gift might be a mortis causa gift although there was no immediate apprehension of death — Blythe v. Curle, February 20, 1885, 12 R. 674, 22 S.L.R. 429. If the gift were mortis causa it was revoked by the will of 5th January 1905. The will was valid. It was not a good objection that one of the witnesses did not sign until after the granter's death Tener's Trustees v. Tener's Trustees, June 28, 1879, 6 R. 1111, 16 S.L.R. 672; Simsons v. Simsons, July 19, 1883, 10 R. 1247, 20 S.L.R. 831; Beattie v. Bain's Trustees, January 12, 1899, 6 S.L.T. 277. Even if the will were

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invalid on the ground of informality it was still an act expressive of an intention to revoke the mortis causa gift. The intention to revoke being clear, effect must be given to it. Cases like Kirkpatrick's Trustees v. Kirkpatrick (June 23, 1874, 1 R. (H.L.) 37, 11 S.L.R. 717) were distinguishable, the intention to revoke not being clear. (5) In any event a mortis causa donation, being revocable, could not exclude legitim and jus relictœ — Morris v. Riddick, July 16, 1867, 5 Macph. 1036, 4 S.L.R. 184.

At advising—