Dunn v Dunn's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1929 |
| Date | 29 November 1929 |
| Docket Number | No. 13. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Murray.
Husband and WifeConstitution of marriageWritten declaration de prsentiWhether genuine marriage intendedSubsequent conduct of parties.
EvidenceFunction of judgeOpinion of judge who heard witnessesDuty of appellate Court.
In December 1928 a woman brought an action of declarator of marriage against the representatives of a man who had died in September of that year, averring that a marriage had been entered into between them by declaration de prsenti in December 1922. It was proved that the parties had for many years prior to that date been on terms of intimate friendship, and that the deceased had more than once proposed marriage to the pursuer. On 28th December 1922, at an hotel at which the parties were staying, they stated in the presence of three witnesses that they accepted one another as husband and wife. A document attesting the marriage was signed by the parties and by the witnesses. The pursuer and the three witnesses to the document deponed that the interchange of consent was serious, and was intended to constitute marriage, and that no other person was present at the ceremony. On the other hand, a witness B deponed that she was present during part of the ceremony, and that the proceedings were of the nature of a joke. At the date of this ceremony the deceased was seventy-six and the pursuer was about forty. The pursuer and one witness deponed that the parties occupied the same bedroom after the ceremony. The witness B gave evidence to the contrary effect. The Lord Ordinary stated in his opinion that he formed the impression that B was an intelligent and an honest witness.
The parties did not take up residence together. The pursuer continued to carry on her profession as a teacher under her maiden name. Several witnesses deponed that the deceased had subsequently introduced the pursuer to them as his wife. Other witnesses gave evidence that the deceased had denied that he was married to the pursuer. The deceased died on 12th September 1928, leaving about 20,000. In his will, made two days before his death, he left the pursuer a legacy of 200 under her maiden name. The validity of this will was in issue in litigation pending at the time of this action.
The Court (rev. Judgment of Lord Murray, diss. Lord Blackburn) held, rejecting the evidence of the witness B, that the exchange of serious matrimonial consent had been clearly established by the document and the evidence of the pursuer and the three witnesses thereto, and that the subsequent conduct of the parties did not displace this conclusion; and decree of declarator of marriage granted.
Authorities on the duty of a Court of appeal, in reviewing a decision on fact of the judge who heard the evidence where the credibility of witnesses was involved, reviewed.
On 3rd December 1928 Mrs Frances Cawe or Dunn, residing at 24 Stockton Terrace, Sunderland, who was designed in the summons as "widow of the deceased Andrew Dunn, who resided at The Green, Kirk Yetholm," brought an action concluding for declarator "that the pursuer and the said Andrew Dunn were lawfully married to each other at Ayton on the 28th day of December 1922, and that the pursuer has since been, and was at the date of death of the said Andrew Dunn, his lawful wife." She called as defenders (first)the Lord Advocate as representing the Crown as ultimus heres of Andrew Dunn; (second) Miss Elizabeth Taylor, residing at The Green, Kirk Yetholm, and another, as executors and trustees appointed in a will of Andrew Dunn, dated 10th September 1928; and (third) Miss Margaret Forrest and others, who claimed to be Dunn's next of kin. The Lord Advocate, who was called on the assumption that Dunn was illegitimate, entered appearance, but subsequently withdrew his defences. The defenders second and third called defended the action. Andrew Dunn died on 12th September 1928, and the validity of the will under which the second-called defenders were appointed was the subject of actions, pending both in the Court of Session and in the English Courts.
The pursuer averred that she was married to Dunn by declaration de prsenti, attested by a probative document signed by the parties, in the Red Lion Hotel, Ayton, on 28th December 1922. The compearing defenders averred that the declaration and document were not seriously intended by the parties to constitute marriage.
The pursuer pleaded:"A valid marriage having been constituted between the pursuer and the said Andrew Dunn as condescended on, decree of declarator should be pronounced in terms of the conclusions of the summons."
The compearing defenders pleaded, inter alia"(3)Separatim, no marriage having been constituted on 28th December 1922 between the pursuer and Andrew Dunn, decree of declarator should be refused. (4) Separatim, the said Andrew Dunn not having at 28th December 1922 had his usual place of residence in Scotland, and not having lived in Scotland for twenty-one days next preceding that date, the said marriage is invalid, and decree of declarator should be refused."
A proof was allowed and led. The import of the evidence was as follows:The pursuer and Dunn had been on terms of intimate friendship for over twenty years prior to 1922. The pursuer, who was a school teacher in Sunderland, was in the habit of staying during her holidays as Dunn's guest at hotels and houses where he was living, but no impropriety in their relationship was suggested. Dunn had in 1909, and on other occasions, proposed marriage to the pursuer, but she had declined these proposals. In December 1922 the pursuer was spending her Christmas holidays at the Red Lion Hotel, Ayton, where Dunn had been living for some years. On the evening of 28th December two friends of Dunn's, named Butlin and Annandale, called on him. He expressed, as he had previously done, a wish to marry the pursuer, and it was suggested that he might do so by a declaration de prsenti.Thereafter the pursuer, accompanied by a Miss Walker, the landlady of the hotel, entered the room. Dunn asked the pursuer to marry him, and after some discussion she agreed to do so. The parties stood up; Butlin asked them whether they accepted each other as husband and wife, and they replied that they did. Miss Walker asked whether they realised that the ceremony was serious and would be binding, and they replied in the affirmative. A document was drawn up by Butlin, and was signed by and the pursuer, and also by Butlin, Miss Walker, and Annandale as witnesses.1 The pursuer, Butlin, Annandale and Miss Walker, who were examined as witnesses, deponed that the interchange of consent, was seriously given, and was intended by the parties to constitute marriage. They stated that no one else was present. On the other hand, a witness, Mrs Mary Darling or Bell, formerly a maid in the hotel, deponed that she was present during part of the proceedings, and that the ceremony was in the nature of a joke, Butlin pretending to play the part of a minister. The pursuer, who was corroborated on the point by Miss Walker, deponed that she and Dunn occupied the same bedroom after the ceremony. Mrs Bell gave evidence to the contrary. At the date of the ceremony Dunn was aged seventy-six, and the pursuer was about forty. It appeared that the ceremony was the subject of local gossip, and was spoken of as having been intended seriously, and not as a joke. Several witnesses deponed that Dunn had subsequently introduced the pursuer to them as his wife, or had stated that he was married to her. On the other hand, certain of the defenders and other witnesses deponed that Dunn had denied the existence of the marriage. The parties did not take up residence together. The pursuer returned to her duties in Sunderland, and continued to use her maiden name. She visited Dunn, who continued to reside at Ayton, and later at Yetholm, during her holidays. The pursuer deponed to having received letters from Dunn beginning "My dear wife" and ending "Your loving husband," and Miss Walker deponed to having written letters in these terms to Dunn's dictation, but none of them was produced. Dunn died at Yetholm on 12th September 1928. The pursuer was not present at his deathbed or at his funeral, but she explained that she had not known that he was dying. By his will, executed two days before his death, he left her a legacy of 200 under her maiden name.2 He left estate of about 20,000.
On 28th June 1929 the Lord Ordinary (Murray) found that the pursuer had failed to instruct facts, circumstances, and qualifications relevant to infer marriage between her and Andrew Dun; and dismissed the action.
At advising on 29th November 1929,
LORD PRESIDENT (Clyde).This case belongs to a class in whichthe alleged husband being deadproof is always attended with difficulty, and in which the balance of the considerations arising upon the evidence pro and con is often nice. At the conclusion of the debate I formed an impression favourable to the pursuer, which subsequent repeated examination of the evidence has done nothing but confirm. That the pursuer and the late Mr Dunn took each other for man and wife before witnesses on 28th December 1922, and that they did so with serious matrimonial intention, I have no doubt whatever. The only difficulty I feel about deciding the case in the pursuer's favour is that I am compelled, by a long and growing stream of cases in the Court of final resort during the last thirty years, to doubt my right and duty as an appellate judge to give effect to my own opinion when it differs from that of the judge of first instance on matters involving credibility. I shall revert to this hereafter.
In Davidson v. Davidson15 I stressedl believe not undulythe importance, in cases of this kind, of the circumstances surrounding the alleged marriage, and of the subsequent conduct of the parties, as being consistent or inconsistent with a serious purpose of marriage. To appreciate the...
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