Drummond's Judicial Factor v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 09 May 1944 |
| Docket Number | No. 21. |
| Date | 09 May 1944 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
EvidencePresumptionSuccessionBurden of ProofCommon calamityProof of survivorship.
There is no presumption in the law of Scotland as to survivorship among persons whose death is occasioned by a common calamity. The question is one of fact, depending wholly on evidence, and, if a claimant whose claim depends on proof of survivorship fails to establish the fact of survivance, his claim necessarily fails.
On the night of 13th14th March 1941, in course of an enemy aerial attack on the district, the house at 12 Pattison Street, Dalmuir, Dumbartonshire, occupied by Ralph Andrew Drummond, Mrs Gladys Roach or Drummond, his wife, and their whole children Ralph Andrew Drummond, Junior, and James Carrigan Drummond, who were both in pupillarity, was totally destroyed by enemy action. Mr Drummond, his wife, and the two children were all in the house at the time of its destruction, and they were all killed in, and as a result of the destruction of, the house. No evidence was available as to whether any one of the four persons survived any other. At the time of their deaths Mr Drummond and his wife were aged respectively 41 years and 39 years.
At the date of her death Mrs Drummond was the owner of 250 War Savings Certificates with accrued interest. She had no relatives, and neither she nor her husband left a will. A question having arisen as to who was entitled to the proceeds of the certificates on their realisation, a special case was presented for the opinion of the Court.
The judicial factor on the estates of Mr Drummond, his wife and the two pupil children was the first party; the two surviving brothers of Mr Drummond, William and another, and his sister were thesecond parties; and His Majesty's Advocate as representing the Crown as ultimus hres was the third party.
The contentions of the parties were stated as follows:
"The first party submits no contention.
"The second parties maintain that in the circumstances herein narrated the said Ralph Andrew Drummond must be presumed to have survived his said wife, or alternatively and in any event the said James Carrigan Drummond must be presumed to have been the last survivor. Accordingly these parties as the legal personal representatives of the said Ralph Andrew Drummond and the said James Carrigan Drummond are entitled to the said 250 War Savings Certificates which, at the time of the death of the said Ralph Andrew Drummond, formed part of his intestate moveable estate or in any event at the time of the death of James Carrigan Drummond formed part of his intestate moveable estate.
"The third party maintains that in the circumstances above narrated there is no presumption in law that either the said Ralph Andrew Drummond or his said children survived the said Mrs Gladys Roach or Drummond, and that in the absence of proof to the contrary they must be assumed to have died simultaneously. He maintains further that, there being no person entitled to succeed to the estate of the said Mrs Gladys Roach or Drummond, she having died intestate, without heirs, the said 250 War Savings Certificates with accrued interest are bona vacantia and fall to the Crown as ultimus hres."
The question of law was: "Do the proceeds on realisation of the said 250 War Savings Certificates in name of the said Mrs Gladys Roach or Drummond with accrued interest fall to be paid over (a) to the second parties, or (b) to the third party?"
The case was heard before the Second Division (the Lord Justice-Clerk, Lord Mackay and Lord Jamieson) on 9th May 1944.
LORD JUSTICE-CLERK (Cooper).On the night of 13th14th 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 asultimus hres 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...
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