Scottish Court of Session Decisions

LORD JUSTICE-CLERK (Cooper).—On the night of 13th–14th March 1941 a house in Clydebank, occupied by a father, mother and two pupil children, was totally destroyed by enemy action. All the occupants were killed. No evidence is available as to whether, or in what order, any of these persons survived each other. The case before us raises the question of the disposal of their estates; but it is unnecessary to examine in detail their individual circumstances or the alternative hypotheses upon which the distribution might have to be made, for the case was presented to us, in a contest between certain representatives of the deceased on the one hand and the Crown as ultimus hœres on the other, upon this overhead view that, if the

question of survivance fell to be determined by any of certain legal presumptions, the funds would pass to the representatives, but that, if the question fell to be determined by proof of survivance, the claim of these representatives must necessarily fail, and the estates must fall to the Crown as bona vacantia.

On behalf of the representatives, Mr Cunningham presented an attractive argument in favour of the view that the question of survivorship in a common calamity should now for the first time in the law of Scotland be declared to be a matter which, in default of proof, should be determined by certain presumptions. For this submission he conceded that he could adduce no Scottish authority; but he invited us to adopt from the law of Rome presumptions derived from a number of passages in the Digest, which indicate that, when two or more persons perished at the same time in shipwreck or battle or similar calamities, survivance was determined by applying certain rules based upon the sex and age of the victims. He also invited our attention to the presumptions of the Code Napoléon, and the rule recently introduced into English law by section 184 of the Law of Property Act, 1925. The Roman and French rules are conveniently summarised in Dickson on Evidence (Grierson's ed.), vol. I, section 130, and I note in passing that these rules and the new rule of English law, though all presumably intended to reflect the broad probabilities of an insoluble situation, are by no means identical. In other words, they are essentially arbitrary and artificial rules of expediency, and have no fundamental basis in principle or equity.

As Lord Dunedin observed in Cantiere San Rocco [1924] AC 226 :—

"The Roman law, though interesting, is only of service as showing the foundation on which the Scots law rests. The real question must always be what is the law of Scotland."

Or, as Stair put it (Inst. I, i, 16), the civil, canon and feudal laws, though they have great weight with us, do not possess the authority of law, "and therefore are only received according to their equity and expediency, secundum bonum et œquum." If the question whether survivance in a common calamity should be determined by evidence or by arbitrary presumption had arisen for decision in the later 17th century, Scotland might conceivably have adopted, as being in accordance with equity and expediency, the Roman solution or some modification of it. But Scotland did not do so; and I have the greatest difficulty in entertaining the suggestion that, in relation to a problem which must have arisen on many past occasions, we should now for the first time adopt from Rome or from any other source an entirely new solution; for such a step would in the circumstances partake of judicial legislation. It is not as if the only alternative to adopting the Roman (or some other) presumptions was to leave the problem unsolved and insoluble; for we have ready to our hand the simple

alternative, for which the Crown contends, that survivance is in every case a matter of proof, and that, when a claimant whose claim depends on proof of survivorship is unable to establish the fact of survivance, his claim necessarily fails.

In my opinion, this is the position according to Scots law. There is no Scottish authority or dictum to weaken it. On the contrary, it is supported by the views expressed in Dickson on Evidence (loc. cit.) and M'Laren on Wills (3rd ed.), vol. I, p. 68; and it was accepted in England by the House of Lords in Wing v. Angrave, a decision which seemingly ruled until 1925.

I would add that it is significant that, though England legislated on the subject in 1925, Scotland refrained from doing so, and, if we may judge from the series of recent cases culminating in In re Grosvenor, the English statutory solution leaves something to be desired.

The result must therefore be that, being of opinion that the question is one for determination by proof and not by presumption, we must reject the contention of the second parties, in which event the sum in dispute falls, in the agreed circumstances of the case, to the Crown.

I therefore move your Lordships that branch (a) of the question of law should be answered in the negative and branch (b) in the affirmative.

LORD MACKAY .—I concur. It is perhaps a little unfortunate that a decision so important as we must make to-day should have to be placed before us in a case of such a small monetary importance, but I have given all due respect, with your Lordship, to all that has been said and to all the authorities bearing on our problem. In this case the family which was wiped out by enemy action was four in number, and there was very little estate between them all; and we are limited to a question of 250 War Savings Certificates held in the wife's name, and as to the disposal of their realised value with accrued interest, and that only; the question—and the only question as I understand it—argued to us being:—In the circumstances, does the law of Scotland presume that the husband, who was in point of fact two years his wife's senior, survived her in that common disaster, and therefore did he become entitled, even in the presence in the same fatality of their pupil children, to the whole of that sum (in which case the husband's representatives would take), or did that presumption of the husband's survivance not apply at all in the law of Scotland, in which case there is no person present within the walls of the present stated case with a title to present better than that of the caducarius (cf. Stair, III, iii, 47), rather than the ultimus, hœres, which is the position of claimant occupied by the Crown. As I have put it, and indeed as it was opened to us, it seems to be taken for granted (but why ?) that the children cannot be held or presumed to have survived either parent. One other remark upon the facts.

I would like to reserve entire my own opinion whether, upon the facts stated as to what occurred on the night of 13th March 1941, there would have been, or might not have been, the same position as was adumbrated by the English judges this year in the case, cited by your Lordship, of Grosvenor. As I regard that case as read to us, the decision, narrow as it plainly was, depended in the end of the day upon the view of the majority in the Court of Appeal that the result of the jury trial (or other similar inquiry) was that there was established by the evidence a coincidence, that is to say, an instantaneous coincidence, of death; and that that fact did not let in the words of the English statute, which for the operation of the new English presumption desiderated that "the circumstances were such as to leave the question in uncertainty." If that had been the issue here, I am not persuaded that the facts mutually stated by all parties are such as to take it out of the element of uncertainty and into the region of a certainty of simultaneity. But we are not here to apply a recent statutory presumption superimposed by statute upon the English law; we are here to determine the question in the law of Scotland. Those in charge of our legislation did not see fit to bring forward to Parliament any legislative presumption which might be there approved and become the subject of our construction.

So much being said by way of caution against our decision being read in too wide a sense, I have no hesitation in agreeing with your Lordship. We have had, if I may say so, a very able statement of the types of presumptions in the presence of certain mutual calamities, which did at one time and another appeal to those construing or settling the law in various different countries. In my opinion, it will be sufficient, in addition to what your Lordship has said, if I refer to only one or two considerations.

In the first place, it is clearly right to say that this question of the reception of the whole civil law doctrine of a set of presumptions, differing according to the age of the respective deceasers and to the sex of the respective deceasers and to other matters, is not a matter raised to-day for the first time. It is not even one faced by Scottish writers of authority only in the last seventy years. I would refer to four passages, and first to Hume's Lectures on the Scots Law which have been recently published in the volume by the Stair Society, volume 5, under the name of Baron Hume's Lectures. There the learned Baron, speaking of the reception of the civil law as a source, says this at p. 12:—

"The basis of this part of our practice lies, of course, in those feelings of natural justice by which, as men, our forefathers were instructed in the rudiments of this science; and in their sense of what was suitable and convenient for them in their state of society and the circumstances in which they lived. Along with these, another cause had a powerful influence"

; and then he refers to the imitation of neighbouring realms. Following upon that, at page 13, he has a passage

upon the reception of certain parts of the Roman law, an event which he says "contributed not a little to purify our jurisprudence at a period when it might not otherwise have made any great advancement." After dealing with certain contrary views of that topic, he adds this at the middle of page 13:—

"Thus much seems to be certainly true. I cannot, however, with some authorities, go still further, and say generally that the entire system of the Civil Law is truly our law, and equally binding on us (independently of reception by a course of judgments) as our own statutes or ancient customs themselves. I must rather be of opinion, along with Stair and Craig (two not incompetent judges certainly) that the obeisance we pay to the Civil Law is now, and always has been, a voluntary obeisance, and matter of courtesy."

I cite these words because I propose to adopt them as my individual outlook on the reception of any section of Roman law which our great institutional writers did not in their time think it worth their while or proper to adopt. The Scots practice is thus well stated to the years 1787–1822.

The next reference I make is one which your Lordship has partly made. Our great institutional writer on the whole subject of presumptions (of which no less than nineteen are nominated in the book) is Mr Dickson on Evidence, as edited and brought up to date in 1887 by Mr Hamilton Grierson, who, as he says, has largely re-written the book. Both these writers say that, having searched the law, they have found no evidence of the acceptance of the presumptions in question about survivance; and in the absence of such discovery it is obvious enough, in reading the passages cited, that, for what their opinion is worth as students of the law of reception, they are not in favour of the acceptance. That brings us to the year 1855 and to the year 1887. We have come now to about the end of last century, and therefore I do not spend time in full citation of Lord M'Laren's dicta in paras. 117 and 118 of his work on Wills and Succession, vol. I, which were read to us, but it is quite clear that, nearly to the end of that eminent judge's life and while revising his second edition (1894), he retained the opinion, which I think is something more than a passing dictum—it is a ripely considered opinion—that the Roman presumptions were not suitable for introduction into the law of Scotland. I mean by its being more than a passing dictum, that his 120th paragraph is not merely a statement that research had found no authority but that, in the opinion of the writer, they were not presumptions which should receive, as doctrine of equity in the law of Scotland, full effect. He talks indeed of "the application of the rule established by the case of Wing v. Angrave ." He expresses that rule in five propositions, which fully cover the present case.

There were several other writers mentioned to us, but the only other writer who I think is very well worth a separate mention in this matter is the late Professor Mackintosh, whose set of lectures on

Roman Law in Modern Practice was delivered on a very important occasion to the jurisprudents of a great colony, and was recorded in a book which was revised by him for publication as such. I find quite similarly in his book—favourable as that learned professor undoubtedly was to the Civil Law, and favourable to its reception as and when it suited our law—that, on the particular question and on all such questions as to whether we have indeed received the law, his view is somewhat strongly expressed (on pages 83 to 87) to the effect that, where it is not found at the time or times of the formation of our law from various sources that the weighty authorities favoured full reception, and where, in the welding together the building of our law from these various sources, a tract of law is found omitted, he would be against a late reception. So much so, that he seems to put it that it would be almost a "relapse" if at a late stage in our history we fell back to a reception which conceivably ought to have found favour at a previous reception of the law. This citation brings the treatment of the matter down to the year 1935.

Where a body of such writers as I have now run over have not seen fit, in any one case, to indicate a favourable dictum towards the reception of these presumptions, I think it would be rather strong if we now, either in unqualified or in modified form, should say that our system of justice and equity (because it is a common system of justice and equity) made it imperative on us to lay down as part of Scots law such rules of presumption as either the Roman law, or the French law in the Code Napoléon, or the English law, have in whole or in part adopted.

Let me add for my own part that, while sufficiently well disposed to the proposition that, in the now increasing frequency of common disasters, it were well if certain easily ascertainable and easily applicable rules of survivorship should be recognised, yet I would not favour taking this strong step unless I were assured that the rules were all-sufficient, and covered every predictable circumstance. I could not favour introducing cases one by one over what might be a prolonged series of spread-out decisions.

It seems to me indeed that we could not solve the present problem satisfactorily in favour of any person other than the fisc without the acceptance and establishment of at least three particular presumptions.

For these reasons, I am of opinion that, ably as the case was presented, Mr Cunningham has not been able to satisfy us that these equitable presumptions are suitable for introduction now into Scots law, and certainly it is the case that they have not hitherto been received as part of that law.

LORD JAMIESON .—I am of the same opinion. It was common ground that there is no decision in Scotland as to what rules should be applied regarding the succession of two or more persons who have met their death in a common disaster. Counsel for the second parties asked us to apply certain presumptions to be found in Roman law. There is no trace of these presumptions having been adopted into our law. On the contrary, both Mr Dickson in his work on Evidence and Lord M'Laren in his work on Wills and Succession do not accept them as being part of the law of Scotland. Further, the presumptions appear to me to be entirely arbitrary and not to be founded on any such equitable principles as would lead us at this date to follow them as a guide to the decision of the case before us. A person who comes forward and claims to be heir to a person deceased must prove that he is so entitled, and, if his claim depends upon that person having survived someone else, he must prove that he did so. The question of survivorship in the case of a common disaster is one of proof. In the present case the parties are agreed that there is no evidence available as to whether, or in what order, any of the four persons concerned survived each other. In these circumstances, it appears to me that the second parties have failed to establish their claim, and that the question falls to be answered as your Lordship proposes.