Brownlee's Executrix v Brownlee
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1907 |
| Docket Number | No. 37. |
| Date | 29 November 1907 |
| Court | Court of Session |
Lord Salvesen, Lord President, Lord M'Laren, Lord Kinnear, Lord Pearson.
Donation—Animus Donandi—Delivery—Proof.—
On 24th December 1903 the books of Robert Brownlee junior contained an account-current between him and his father, Robert Brownlee senior, which shewed a balance of £1653, 8s. 6d. at the credit of the father. At the same date the account was squared by an entry of ‘To cash, £1653, 8s. 6d.,’ and a docquet was appended, which was signed by Robert Brownlee senior, in these terms ‘Settled this date.’
Of the same date a receipt was granted by the father to the son for £1653, 8s. 6d. ‘as per account rendered.’ No cash passed between the parties. At the same date the son gave a receipt to his sister, Miss Brownlee, for £1653, 8s. 6d., and she was credited in his books with that amount.
On 22d February 1904 Robert Brownlee junior gave his father a written guarantee that Miss Brownlee would pay him £2000.
On 16th March 1904 Robert Brownlee junior, by Miss Brownlee's instructions, paid the £1653 and interest to the father's agents.
In an action brought by the father's executrix in 1905 against Robert Brownlee junior for payment of the £2000, the question arose whether in March 1904 the sum of £1653, 8s. 6d. belonged to the father or to the daughter.
The defender alleged that it had been gifted by the father to the daughter on 24th December 1903, and contended that the documents above mentioned instructed an absolute title in the daughter, and, therefore, that the £1653 had been paid by the daughter, and the defender's liability under the guarantee reduced by that amount.
Held (aff. judgment of Lord Salvesen) that as the defender admitted that the sum due by him to his father had not been paid by him to his father on 24th December 1903, the onus lay upon him to prove (1) that the father had transferred the title to Miss Brownlee, and (2) that he had done so animo donandi; and that the writings did not, by themselves or along with the parole evidence, instruct either the transfer to her or the animus donandi.
The pursuer in this action was Mrs Margaret Irvine or Colquhoun or Brownlee, the widow and sole executrix of the deceased Robert Brownlee senior, Glasgow, who died on 29th March 1905, and the defender was Robert Brownlee junior, his son.
The action concluded for payment of £2000 alleged to be due to the deceased's estate by the defender under a letter by which he guaranteed payment of that sum by his sister, Miss Catherine Brownlee, to the deceased, to enable him to make a provision for Mrs Barr, his daughter by a former marriage.
In his defences Robert Brownlee junior stated that on 24th December 1903 a sum of £1653, due by him to his father, was by the father transferred to his daughter Catherine as a gift, and that on 16th March 1904 this sum was paid by her to her father, thereby reducing the defender's liability as cautioner by that amount.
The pursuer in answer stated that this sum was not transferred to or gifted by the father to his daughter, and remained his property.
The circumstances in which the action arose and the nature of the action are fully stated in the Lord Ordinary's note.
On 6th November 1906 the Lord Ordinary (Salvesen), after a proof, ordained the defender ‘to make payment to the pursuer of £1950 sterling in full of the conclusions of the summons.’*
The defender reclaimed, and argued;—The documents produced shewed that on 24th December 1903 £1653 was completely and unconditionally transferred by the deceased to Miss Brownlee. The documents themselves were her title, and it was unnecessary for her to prove any other, If the money were now claimed on behalf of the deceased, it could only be on the ground that it had been handed to Miss Brownlee in trust; that could only be proved by her writ or oath, and no such evidence was forthcoming. The authorities relied on by the pursuer were all inapplicable, dealing as they did with the transference of money by indorsement of a deposit-receipt. The ratio of these decisions was that the indorsement of a deposit-receipt was not in itself a complete transference of the money which it represented, and that consequently further proof was required of the title on which the property was acquired. But where, as in the present
case, the assignment of the property was complete, there was no necessity for the defender to prove donation.1 Even if it were necessary, the documents together with the parole evidence were sufficient to establish not only delivery of the money, but also the intention of the deceased to bestow it on Miss Brownlee as a gift.
Argued for the pursuer;—It was the defender's case on record that Miss Brownlee had acquired the money by donation. In such circumstances it was necessary for the alleged donee to prove not merely delivery, but also the intention to make the gift. This was the law, whether the transference was complete or incomplete, and whether it was effected by delivery of a document of title or of the property itself. This rule had been exemplified mainly in cases relating to the indorsation of deposit-receipts,2 but it applied equally to the present case. Here the evidence in support of donation was wholly insufficient. The documents founded on did not shew with what intention the assignation of the property in favour of Miss Brownlee was made
by the deceased; they did not even prove that such an assignation was made at all. The parole evidence of donation, resting as it did on the uncorroborated testimony of the defender and his sister, contradicted by such direct evidence as there was of the true state of mind of the deceased, gave no support to the defender's case.
At advising,—
Lord President.—The facts out of which this case arose are so clearly and fully stated by the Lord Ordinary that it would be useless for me to repeat them. The story of the gradual absorption of old Mr Brownlee's fortune by his nearest relatives is pathetic enough, and were it adequately described would seem more like the closing scenes of the life of Père Goriot than the history of a middle class family in Glasgow. Sympathy, however, is an ill basis for a judgment. And even were it not so, I do not think there
is room for any in this case. As was naively said in the proof by the defender, ‘the old man had been ground between two millstones,’ and what your Lordships have to decide is to which of the two millstones this, the very last piece of grist, shall stick.
The case of the pursuer is simple enough, being based on an undisputed guarantee by the defender; and the defence is simply that the sum guaranteed, with the exception of a small sum, has been already paid by Miss Brownlee. All turns on whether the sum of £1653 really belonged to old Mr Brownlee or to Miss Brownlee. That sum of £1653 admittedly first appears as a sum of money due by the defender to his father, old Mr Brownlee. Appearing in the defender's books as a credit entry in an account between the deceased and him, it is squared by a debit entry to cash of the same amount. Admittedly no cash passed. But at the same
time a receipt was granted by old Mr Brownlee, and in the defender's books in an account with his sister a credit entry of the same amount is made to her; and eventually it is this sum which is paid away for the payment secured by the guarantee. In these circumstances the Lord Ordinary, treating the case as one of donation, has held that the onus on the defender to prove donation has not been discharged, and that accordingly, the £1653 being the property of old Mr Brownlee, no payment was made by Miss Brownlee of that sum, and the obligation in the guarantee becomes prestable.
Before your Lordships, however, the Dean of Faculty strenuously urged that there was here no necessity to prove donation, because the transaction between old Mr Brownlee and Miss Brownlee was a completed one; and that the onus of proving donation only arose when there was no completed
transference, but where the titulus transferendi was a document of ambiguous import, such as, for instance, an indorsed deposit-receipt; indeed, he went so far as to urge that the law on deposit-receipts formed a kind of special chapter which could not be applied to other subjects. In my opinion this position is unsound. I do not think there is any difference in principle between the cases of donation where the subject of the donation is money exigible as against the bank with which it is deposited in virtue of a deposit-receipt, and cases where the subject is something else. The only peculiarities of deposit-receipts consist in the consideration of how far indorsation of the deposit-receipt is equivalent to delivery of the money alleged to be donated.
The rule seems to be this: When a person is asked to give up something, be it land, corporeal moveables, or money, which he has reduced into possession,
he can assume the defensive and put the claimant to shew his title. But if in answer to the claimant he is willing or forced to admit that the something only came into his possession by donation from a person whom the claimant, whether by special or universal title, represents, then the onus is put upon him to prove the animus donandi, as well as the delivery of the thing. No doubt the fact of delivery may be evidence of the animus donandi. Its strength as evidence will vary with the circumstances. But none the less the animus donandi is a separate question and must be proved as well as the delivery. I think this proposition is amply borne out by many cases. In particular I would refer to the remarks of Lord Young, in Milne v. GrantSC.1 His Lordship there expresses himself thus:—‘Gift inter vivos—I quite agree that a gift of any amount of money or of any article of property may be completely made and well established by parole evidence. But it must be made. The expression of an intention to give anything—a piece of...
To continue reading
Request your trial
-
McGraddie v McGraddie
...is the issue which this court has to decide. The background circumstances 7 Lord President Dunedin remarked of the facts of Brownlee's Executrix v Brownlee 1908 SC 232 that the story seemed more like the closing scenes of the life of Père Goriot than the history of a middle class family in......
-
David Mcgraddie V. Rodger John Mcgraddie+lorna Esther Green
...In respect of both transactions the defenders allege a gift. There is a presumption against donation: Brownless's Executrix v Brownlee 1908 S.C. 232 at 242, and Grant's Trustees v McDonald 1939 S.C. 448 at 460-461 and 471. Mr Brown acknowledged that there is some authority to the effect tha......
-
Clark's Executrix v Brown
...notwithstanding the defender's attitude of non-admission, the dictum of Lord President Dunedin in Brownlee's Executrix v. Brownlee, 1908 S. C. 232 (referred to by Lord Hunter inPenney v. Aitken, 1927 S. C. 673, to which the pursuer's agent referred), regarding the onus of proof of donation ......
-
Macpherson's Executrix v Mackay
...11 19 R. 261. 12 1909 S. C. 15. 13 11 R. 453. 14 7 R. 1131. 15 3 F. 337, Lord Young at p. 340. 16 17 R. 958, Lord Young at p. 960. 17 1908 S. C. 232. 1 5 Macph. 2 10 R. 1000. 1 12 R. 674. 2 7 R. 823. 3 10 Macph. 923. 1 7 R. 823. 1 12 R. 674. 1 10 R. 1000. 1 Sharp v. PatonUNK, 10. R. 1000, a......