Scottish Court of Session Decisions

John Logan, marine engineer, pursuer, brought an action against Mary M'Master Logan, his daughter, defender, concluding (secondly) for payment of £1500 by the defender to the pursuer, or of such other sum as might be found to have been received by the defender under her mother's will, or, alternatively, for the pursuer's jus relicti out of his wife's estate, with conclusions for an accounting so as to ascertain the amount of the jus relicti.

The pursuer pleaded, inter alia—“2. The estate bearing to be bequeathed to the defender under the said alleged trust-disposition

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and settlement being the property of the pursuer, he is entitled to decree for payment thereof in terms of the first alternative of the second conclusion of the summons. 3. Alternatively, the pursuer being the survivor of the spouses is entitled to a count and reckoning, and decree for payment of his legal rights as concluded for.”

The defender pleaded, inter alia—“2. The estate bequeathed to the defender by her mother under the said trust-disposition and settlement not being the property of the pursuer, the defender ought to be assoilzied. 5. The pursuer is barred by mora and taciturnity from suing the presentaction. 6. The defender being willing, and having offered the pursuer payment of jus relicti out of the estate of her deceased mother, the conclusions relative thereto are unnecessary and ought to be dismissed.”

On 7th February 1920 the Lord Ordinary ( Ormidale) decerned against the defender for payment to the pursuer of the sum of £937, 14s. with interest thereon at the rate of 5 per cent. per annum from the date of citation until payment, as moved for by pursuer's counsel.

Opinion—from which the facts of the case appear.—“… The second conclusion calls for payment by the defender to the pursuer of the sum received by her as a beneficiary under the trust-disposition and settlement of her mother with interest at 5 per cent. from the date or dates on which the defender received said sum.

The pursuer is a marine engineer. He was married to Mrs Logan, who was the adopted child of a Mr and Mrs M'Master, on 17th June 1896. The defender is the only child of the marriage, and was born in 1897.

Mrs Logan died on 27th September 1910 leaving a trust-disposition and settlement executed the day before her death, under which the defender was the sole beneficiary. At the date of her mother's death she was in minority. In terms of the will the income of the trust estate was paid over to her or for her behoof until she attained majority in 1918, when the capital was made over to her and the trustees discharged.

The pursuer saw little of his wife. He had been at sea for nine years until shortly before his marriage, and he went to sea again to China in October 1896. He did not revisit Scotland until 1914. After being at home nine weeks he sailed again for China, and finally returned to this country in October 1918. He then resided for a few months in the same house as the defender, but owing to some disagreement he left the house in January 1919, and on the 24th of that month he put forward for the first time the present claim.

On record he says that his wife when he married her had no means of her own, and that the estate disposed of under her will consisted of money saved by her out of the monthly remittances sent to her by him.

It is proved that Mrs Logan had in 1897 on deposit with the Dumbarton branch of the Commercial Bank of Scotland, Limited, a sum of £128, which she uplifted and added to from time to time down to the date of her death,

The sum on deposit was increased to £334 by 7th August 1900, when £290 was withdrawn, leaving a balance on deposit of £44, and on 10th August she lent £300 to the Corporation of Glasgow. It seems to me impossible to doubt that the £290 went to make up the £300.

Thereafter the deposit of £44 grew to the sum of £847 by September 1910.

These two sums of £300 and £847, together with £16, being the proceeds of a remittance from the pursuer, constituted the whole estate left by Mrs Logan.

The pursuer says that he regularly remitted his wife £17 monthly. He has not succeeded in proving this even taking £17 monthly to mean at the average rate of £17 a month, but that he remitted her very considerable sums of money is undoubted.

The remittances were made by drafts as a rule of the Hong Kong and Shanghai Bank, but occasionally of the Chartered and Mercantile Bank. The drafts were in the form of a first of exchange payable in London.

A comparison has been made with the aid of excerpts from the books of the Dumbarton bank of the dates when Mrs Logan uplifted and added to her deposit-receipt, and the dates when drafts were received by her from the pursuer, and though not absolutely identical in every case they are practically so.

The evidence as to this is not so complete with regard to the period prior to 1902. It appears that up to that date, while a note was made in the books of the bank of the names of the foreign banks from which the drafts were received, the name of the payee on the draft was not disclosed, and accordingly as Mr Mackintosh, the bank agent, explains, it is not possible to identify any particular draft received from the Hong Kong or Chartered Banks with Mrs Logan. All that is proved is that on the dates when Mrs Logan dealt with her deposit-receipt, drafts on one or other of these foreign banks were cashed by the Dumbarton bank.

After 1902, however, the practice was introduced of noting in the books of the bank, not the name of the foreign bank from which the drafts were received, but the name of the payee on the draft, and accordingly the drafts noted in the list of entries after that year are identified with Mrs Logan. In the light of what is proved with reference to these later years I think the reasonable inference is that some, if not all, of the earlier drafts noted in the [list of entries] covered remittances from the pursuer to his wife. In some instances no entries of drafts received appear on dates corresponding with the dates of transactions with the deposit-receipt. The bank agent explains that for these dates the books of the bank were not available.

Now the course followed by Mrs Logan with reference to the drafts received from her husband after 1901, when Mr Mackintosh became agent of the bank, is thus described by him. He says that he remembers her coming about the bank, and that she came regularly. ‘During the whole time I was there until her death she came to the bank.

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I remember her bringing foreign drafts. I am speaking from recollection as to what she did with the drafts; she had a deposit-receipt and she usually added the whole or part of the draft to the deposit-receipt, taking out a new deposit-receipt.’

There is no proof that Mrs Logan received money from anyone other than her husband. The defender speaks to money having been given to her by Mrs M'Master from time to time. So does Mr Wiggitt; the latter's evidence, however, having reference only to the last five years or thereby of Mrs Logan's life. But their evidence is very vague and indefinite, and the incident (which is said to have happened not infrequently) described by Mr Wiggitt of Mrs Logan handing money to Mrs M'Master and then receiving it back again is not very intelligible. Mrs Logan was of service to the M'Masters. She did the work of the house and apparently she tendered board to Mrs M'Master, who, according to the defender, later on returned it to Mrs Logan in presents. This may be what Mr Wiggitt refers to. There is no doubt that the M'Masters regarded Mrs Logan very much as a child of their own. On their deaths they left all the estate which they had—and it was not inconsiderable—to the defender. It seems to me, further, to be at least not unlikely that Mrs Logan entrusted any money that she had over and above what she added to the deposit-receipt to the M'Masters for safe custody and received it back again as she required it. But however that may be, the fact remains that there is no proof that any moneys received from the M'Masters were added to the deposit-receipt. Mr Wiggitt no doubt says—‘(Q) Did Mrs M'Master ever say anything to you as to what Mrs Logan did with the remittances that she got from China?—(A) I understood (she handed them practically over to Mrs M'Master. I came to understand that through Mrs M'Master. I heard her say so time after time.’ There is no other evidence to support that, and Mr Wiggitt does not say for what purpose the remittances were handed to Mrs M'Master.

On the other hand the defender, speaking of the occasions on which she accompanied her mother to the bank, says—‘I sometimes went with my mother to the bank when she was depositing money; on a Saturday I went with her, but not unless. I did not go very often, but I went perhaps at least half-a-dozen times. On those occasions she put so much into the bank on deposit-receipt and lifted so much. I could not exactly say how much she put into the bank. (Q) Where did she get the money to put into the bank?—(A) It was from these drafts—these exchanges. It was the money she got in exchange that I saw her putting in. I could not exactly say what she would do with the money that she got from Mrs M'Master’; and again—For some years before her death I remember money coming regularly from time to time. It came once a month or every six weeks, along with a letter from my father. My mother wrote to him and told him that she had got the money. (Q) Were the remittances always fairly big sums, £15, £17, and so on?—(A) Yes. I don't remember larger sums coming. I don't remember £34 coming. As regards the money she got, she put so much of it on deposit-receipt and she uplifted so much. It was seldom that I was at the bank with her, but I have seen her do that and I know that she did so. That was what she usually did with the money that my father sent home.’ I note also that the greater the value of the drafts sent to Mrs Logan in any one year, the larger is the amount added to the deposit-receipt.

The evidence of the M'Masters, both of whom died in 1916, would have been of the greatest value in many ways and with regard to many points, and it has been lost largely owing to the delay of the pursuer in taking action, but I am not prepared to say that it was of such vital importance to the defender as to warrant me in holding that merely because of its absence the pursuer's case is not proven. The pursuer was at home in 1914 and he made no claim. It is difficult to understand why he did not at least make inquiries as to what had become of the money remitted home by him. He says he was only at home for nine weeks, and that he had at that time no knowledge that his wife had left a will. There is nothing to indicate that he had except his own statement on record. He contradicts that statement in the witness-box, and says that all he heard when at home was that there was a considerable sum of his wife's money in the house, but he explains that he had no time to do anything about it, that he thought he could trust his daughter as he had trusted his wife. After his wife's death he remitted to his daughter £6 to £8 a month up to 1914, and while at home that year he gave her a present of £300, and I feel pretty certain he would not have done so if he had had any idea that the defender was the sole beneficiary under a will of her mother. The explanation given by the pursuer of why he did not make any inquiries about his wife's money when at home in 1914 is not very satisfactory, but I was not disposed to take an unfavourable view of the pursuer as a witness. He was not very quick or clever at expressing himself, but he did not appear lacking in candour. He was completely wrong about having destroyed the seconds of exchange. He spoke of 18, totalling £306. There are only 15 and they total £278. Mrs Arrol, however, corroborates him in regard to the value of the drafts which he and she counted up together, and I think it is just possible that three may have gone amissing since they left the pursuer's hands. He certainly had no interest to say that he had destroyed them. They furnish evidence that is entirely favourable to him, showing that latterly he was sending very large remittances home, not very far short of £17 a month. It is curious that the entries [in the list] do not account for the whole of [the seconds of exchange], suggesting that perhaps Mrs Logan may have had some of the drafts cashed at another than the Dumbarton bank, though there is no evidence of this.

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I come to the conclusion on the whole matter that the pursuer's statement that the estate disposed of by Mrs Logan consisted of the money saved by her out of the remittances of the pursuer is substantially proved.

He claims that this surplus is his property in respect of an arrangement or understanding between him and his wife, that after taking what she required out of the remittances she was to bank the remainder against his return and settling down at home. I think it is quite possible that there was such an understanding, but the proof of it rests on the pursuer's evidence alone. It does not, however, appear to me very material, for in my judgment he is entitled to reclaim the moneys as a donatio inter virum et uxorem. The remittances may have been sent home primarily for the aliment of his wife and child, but quoad excessum they were just gifts. The pursuer was not inclined to grudge his wife anything that was necessary for her comfort, and he seems to have had confidence in her.

There is one deduction that must be made from the estate left by Mrs Logan before that estate is handed over to the pursuer. He says that he gave Mrs Logan £100 before he married her, and it was therefore Mrs Logan's property. I assume, and I understood counsel for the pursuer was prepared to admit, that this would be included in the deposit-receipt. Some interest must have been earned by it. Accordingly I shall deduct £150 from the sum of £1087, 14s., which is the agreed-on amount of what was received by the defender from her mother's trustees, and give the pursuer decree for the balance, viz., £937, 14s.”

The defender reclaimed, and argued—If a wife by working for her keep was able to save money out of sums sent to her by her husband as aliment, such savings of hers were hers absolutely and could not be recovered by the husband— Davidson v. Davidson, 1867, 5 Macph. 710, per Lord Justice-Clerk Patton at p. 714, 3 S.L.R. 343; Henry v. Fraser and Another, 1906, 14 S.L.T. 164, per Lord Johnston at p. 165. In the absence of evidence the sums sent by the pursuer must presumably have been for aliment. Further, it was proved, or if not must be presumed, that the pursuer's wife worked for the M'Masters and earned her keep. By so doing she was able to save the money in question. In the incomplete state of the evidence the pursuer's neglect to state and prosecute his claim supported that view. The Lord Ordinary's interlocutor should be recalled.

Argued for the pursuer—The Lord Ordinary was right. The sums on deposit-receipt were definitely identified as having been derived from the drafts. The evidence did not support the view that the pursuer's wife was earning her keep with the M'Masters. The money in the drafts which remained after the deposits were made was paid by the wife to the M'Masters, i.e., she was paying for her board. But even if the wife worked for and earned her keep she had still to show a legal claim to the money in the deposit-receipts. To enable her to do so she must prove that the funds sent were alimentary and were not excessive— Davidson's case ( cit.), per Lord Neaves at p. 714. There was no such proof. The evidence proved no more than that the pursuer merely sent home what money he could spare. In those circumstances it was enough if the pursuer proved that the funds sent home by him were still extant and unconsumed— Fenton Livingstone v. Fenton Livingstone, 1908 S.C. 286, 45 S.L.R. 896; Hedderwick v. Morison, 1901, 4 F. 163, 39 S.L.R. 124; Hutchison v. Hutchison's Trustees, 1842, 4 D. 1399; 1843, 5 D. 469, referred to in Edward v. Cheyne, 1880, 15 R. (H.L.) 37, per Lord Watson at p. 39, 25 S.L.R. 424.