Macfarlane's Trustees v Miller

JurisdictionScotland
Judgment Date20 July 1898
Docket NumberNo. 191.
Date20 July 1898
CourtCourt of Session
Court of Session
1st Division

Ld. Stormonth-Darling, Lord President, Lord Adam, Lord M'Laren.

No. 191.
Macfarlane's Trustees
and
Miller.

DonationDonation mortis causaDeposit-ReceiptDelivery.

Evidence upon which it was held (dub. Lord M'Laren) that there had been an effectual mortis causa donation of sums in deposit-receipts which bore that the sums had been received from the alleged donor and donee payable to either or survivor, although the receipts were in the possession of the donor at the date of her death.

Gibson v. Hutchison, 10 Macph. 923, Crosbie's Trustees v. Wright, 7 R. 823, and Blyth v. Curles, 12 R. 674, followed.

The trustees under the trust-disposition and settlement of Mrs Macfarlane, widow of John Macfarlane, writer, Stirling, raised an action against Mrs Miller and others concluding, inter alia, for declarator that (1) ten deposit-receipts, dated 16th June 1893, for 40 each, granted by the City of Melbourne Bank in favour of Mrs Macfarlane and Mrs Jessie D. Lawrie, repayable to either or survivor, and (2) nine deposit-receipts, dated 27th October 1893, granted by the National Bank of Scotland in favour of Mrs Macfarlane and Mrs Jessie D. Lawrie, repayable to either or survivor for sums between 25 and 50, together with the sums contained therein, were the property of Mrs Macfarlane at the date of her death (9th January 1894), and that the defenders had no right or interest therein; and for decree ordaining Mrs Miller to account for her intromissions with the estate and effects of Mrs Macfarlane.

The conclusion for accounting referred, inter alia, to sums contained in deposit-receipts in Mrs Macfarlane's name which had been cashed on 17th and 27th October 1893, and redeposited in Mrs Miller's name.

Mrs Miller lodged defences as an individual and as executrix of Mrs Lawrie, her daughter.

The defence to the conclusion of declarator was that the deposit-receipts therein referred to had been donated mortis causa by Mrs Macfarlane to Mrs Lawrie.

The defence as to the deposit-receipts in Mrs Miller's name was donatio inter vivos.

The pursuers denied the alleged donations, and averred separately that, if made, the donations had been impetrated from Mrs Macfarlane by Mrs Miller and Mrs Lawrie by the exercise of undue influence, and by fraudulently taking advantage of Mrs Macfarlane's weakness and facility.

Proof was led. The evidence shewed that the City of Melbourne Bank receipts,* dated 16th June 1893 (the date of a reconstruction of the bank), had been issued on 15th September 1893 on Mrs Macfarlane's instructions in exchange for receipts previously held by her in her own name, and that the National Bank receipts had been issued on 27th October 1893 on Mrs Macfarlane's instructions in exchange for receipts previously standing in her name. The Melbourne Bank receipts were not payable until 16th June 1898. Both the City of Melbourne Bank and the National Bank receipts were found in Mrs Macfarlane's repositories at her death. The evidence shewed that Mrs Macfarlane became insane on 1st November 1893. The evidence as to her state of mind prior to that date, and as to her intention to make donations, appears from the opinions of the Lord Ordinary and of the Court.

On 30th June 1897, the Lord Ordinary (Stormonth-Darling) assoilzied the compearing defender, with expenses.

The pursuers reclaimed, and argued;It was necessary for the defender to overcome the strong presumption which there was against donation,1 and in order to do so she must shew that when Mrs Macfarlane took the deposit-receipts on the terms which they bear she did this with the present intention of making a donation, and that she formed that intention of her own free will The Lord Ordinary was therefore wrong in separating the consideration of the two questions whether there had been an intention to donate on Mrs Macfarlane's part, and whether there had been undue influence on the part of the donees, and in holding that the onus of proof on the latter question lay on the pursuers. The proper conclusion on the evidence was that the defender had failed to prove either intention to donate, or assuming intention, that Mrs Macfarlane had formed that intention of her own free will. On the latter question the result of the proof was, that at the date of the alleged donations, or at all events the later donations, Mrs Macfarlane was of weak mind, and incapable of withstanding the influence of the donees, and that they had obtained the donations

by undue influence. Further, as regarded the proof of donation, it was a most material circumstance that none of the receipts which were said to have been donated to Mrs Lawrie had been delivered, for delivery was as a general rule essential to constitute donation.1 There must be some act expressing an intention to make a gift, or the distinction between a bequest and a donatio mortis causa became obliterated,2 and a destination in a deposit-receipt was not a valid form of bequest.3 With the single exception of CrosbieSCUNKSC4 there was no case in which delivery or its equivalent had been dispensed with, and in that case the deposit-receipt, although not delivered to the donee, had been put out of the donor's hands. Here there was neither real delivery nor anything which could be construed as equivalent to delivery.

Argued for the defender;The alleged donations were clearly proved. There was shewn to have been a strong antecedent probability of donation, and there was distinct evidence, other than that of the donees, in all the cases, that when Mrs Macfarlane indorsed

the deposit-receipts she did so with the animus donandi. In the case of the alleged inter vivos donations there had been delivery, and the onus was therefore on the pursuers to displace the presumption in favour of donation.1 In the case of the alleged mortis causa donations there had been no actual delivery of the documents of title, but such delivery was not necessary to constitute donation. It was sufficient, intention to donate being proved, that there should be delivery or its equivalent, and there was constructive delivery if the title were taken in name of the donee as here.2Crosbie'sSC case2 did not stand alone.3 Mrs Macfarlane's intention to donate being proved, it was for the pursuers to prove their averment of facility and undue influence, for there was no presumption in favour of facility, and the Lord Ordinary had been right in considering the two questions separately, and in holding that the onus on the question of facility lay on the pursuers. They had not discharged that onus. On the contrary, their averment was proved to be untrue.

At advising,

Lord President.The most general ground upon which the pursuers have taken their stand is that, during the whole period in which these alleged gifts were made, Mrs Macfarlane was in a state of mental weakness. If this were established to the extent of derangement, the pursuers would necessarily succeed; but, even if the lady was not insane but weak and facile, this enters deeply into the question whether there is adequate evidence of intelligent and voluntary donation. Now, in this question of fact it is a remarkable circumstance that the lady admittedly was insane on and after 1st November 1893; and, as one of the alleged acts of donation took place on 27th October, it would not be difficult to believe that the mental derangement which was apparent on 1st November existed five days before. Still, this is a question of fact, and I think it is satisfactorily

established that Mrs Macfarlane was of sound disposing mind on and previous to 27th October. The evidence on this matter is all one way, so far as it comes from observers at the time, with the exception of Dr Moodie; and, for the reasons given by the Lord Ordinary, the testimony of that gentleman has not the weight that would naturally belong to the impartial observation of a medical man. Dr Clouston never saw the lady till the middle of November, and while, in the absence of direct evidence, one would readily accept Dr Clouston's inference from what he saw, yet I cannot prefer it to what we have on unimpeachable testimony from those who saw the lady day by day, and tell us of her actual conduct. The true conclusion seems to be that the mental powers of Mrs Macfarlane broke down suddenly, and that, to quote a hostile witness, Miss Margaret Cook, Mrs Macfarlane's state of health during October did not affect her mental powers in any way.

In what I have said it is not implied that the case is free from the difficulty which surrounds all cases of gifts by invalids, and Mrs Macfarlane during the whole period which we have to consider was in declining health. I find no absence in the Lord Ordinary's opinion of the vigilance which is required in scrutinising a case of donation in such circumstances; and, after careful examination of the evidence, I have come to be satisfied that donation is proved in...

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