Macpherson's Executrix v Mackay
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1932 |
| Docket Number | No. 66. |
| Date | 18 March 1932 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Moncrieff.
Donation—Donation mortis causa—Constitution—Deposit- receipt—Receipt in name of depositor or nephew or survivor—Receipt delivered to nephew—Whether terms of receipt along with surrounding circumstances sufficient to instruct donation mortis causa to nephew.
A woman, engaged in domestic service and without a home of her own, placed her savings on deposit-receipt in 1900 in name of herself and her sister to be drawn by either of them or the survivor. The receipt was then handed to the sister, who kept it at her home, but periodically the deposit was uplifted by the depositor and re-deposited with interest and further savings added to it. The depositor had a niece and nephew, her sister's children, and, on the sister's death in 1921, the name of the niece was substituted as the second name in the receipt, the system of depositing continuing otherwise unchanged. On the niece's death in 1929, the nephew's name was similarly substituted by the depositor as the second name in the receipt, the receipt being thereupon handed by her to him. The depositor regarded her sister's family as her only relatives and their home as her own, and, on several occasions, she had stated to third parties that the sum on deposit was to go to the survivor of the persons named in the receipt. The depositor having died in 1930, survived by the nephew,—
Held (diss. Lord Sands, dub. the Lord President) that, in the circumstances, the terms of the deposit-receipt, taken in conjunction with the depositor's expressions of intention, were sufficient to instruct a donation mortis causa of the sum on deposit in favour of the nephew.
Crosbie's Trustees v. WrightUNK, (1880) 7 R. 823,followed.
Observations upon the requisites of a donation mortis causa.
Mrs Margaret Elizabeth Petrie or Anderson, residing at 30 Grant Street, Burghead, Moray, executrix-dative qua one of the next of kin of the late Mrs Mary MacLean or Macpherson (referred to in this report as Miss MacLean), formerly residing at Tornagrain, Petty, Inverness-shire, brought an action of count, reckoning, and payment against John Mackay, also residing at Tornagrain, in respect of intromissions had by him with Miss MacLean's estate. The defender was Miss MacLean's nephew, and the pursuer averred that Miss MacLean's estate, at her death, included a sum of £1242, 1s. 3d. on deposit-receipt in name of Miss MacLean and the defender, "to be drawn by either of them or the survivor," and that, after Miss MacLean's death, the defender had uplifted and taken possession of the sum deposited. The defender denied that the sum in question formed part of Miss MacLean's estate, and averred that the deposit-receipt had been delivered to him by Miss MacLean with the object of making a gift to him of the contents.
The defender pleaded, inter alia:—"(3) In the circumstances above set forth, the deceased having made an effectual gift of the said deposit-receipt, and the contents thereof, to the defender, the same became his property. (4) Alternatively, a valid donationmortis causa of the said sum on deposit-receipt having been made by the said Mrs Macpherson [Miss MacLean] in favour of the defender, decree of absolvitor ought to be pronounced."
A proof was allowed and led before Lord Moncrieff, the facts established at which are fully set forth in his Lordship's opinion. These facts may be summarised as follows:—The pursuer was the daughter of the late Mrs Petrie, a sister of Miss MacLean, who resided at Burghead, Moray. Miss MacLean—who had been married to a certain Hugh Macpherson, but had been deserted by him and had resumed her maiden name—died intestate on 14th January 1930 without issue. The pursuer was appointed her executrix-dative qua one of her next of kin. The defender was also one of Miss MacLean's next of kin, being the son of the late Mrs Mackay, another sister of Miss M'Lean, who resided at Tornagrain, Petty, Inverness-shire. In 1900, after being deserted by her husband, Miss MacLean entered domestic service, and she remained in service until June 1929, holding various situations as a housekeeper. During this period she was without a house of her own. Until 1908 she usually resided, when unemployed or on holiday, either with Mrs Petrie at Burghead or with Mrs Mackay at Tornagrain. In 1908 Mrs Petrie died and her home was broken up. Thereafter Miss MacLean usually resided, when not in service, with Mrs Mackay, and she regarded Mrs Mackay's house as her home. After 1908 her relations with the Petrie family were merely formal, and she saw little or nothing of them.
At the time of entering service Miss MacLean had certain savings, amounting to £107, 7s. 6d., which, in January 1900, she deposited with the Bank of Scotland, Union Street Branch, Inverness, on deposit-receipt, the receipt being in name of herself and her sister Mrs Mackay, to be drawn by either of them or the survivor. From 1900 until her death, Miss MacLean always held a deposit-receipt from this bank, the deposit being periodically uplifted by her and the amount increased by the addition of interest and further savings. The receipt was kept by Mrs Mackay at Tornagrain. Mrs Mackay died in 1921, and, thereafter, the name of her daughter, Miss Margaret Mackay, was substituted as the second name in the deposit-receipt, the system of deposit continuing otherwise unchanged. Miss Mackay died in February 1929. During Mrs Mackay's lifetime, the sum on deposit was uplifted and re-deposited on forty-two occasions; while during the period of Miss Mackay's survivance of her mother it was uplifted and re-deposited on twenty-four occasions. Upon the death of Miss Mackay in February 1929, her brother, the defender, discovered the deposit-receipt in her repositories, and handed it over to Miss MacLean who happened to be living at the time at Tornagrain. Afterwards the defender met Miss MacLean, at her request, in Inverness on 4th March 1929, and together they went to the Union Street Branch of the Bank of Scotland, where they both signed the form in which application was made for a new receipt. The bank thereupon issued a receipt, this time in name of Miss MacLean and the defender, "to be drawn by either of them or the survivor." The same day, on her return from Inverness to Tornagrain, Miss MacLean handed the receipt to the defender. On two subsequent occasions before her death, she uplifted and re-deposited the money, but, apart from her incidental use of the document on those occasions, it remained in the defender's custody until her death.
The defender deponed that he always understood that the money on deposit was a gift by Miss MacLean to him if he survived her, and he also deponed that, on several occasions, Miss MacLean had stated that this was her intention. According to the evidence of Mrs Christie, a neighbour of the defender's at Tornagrain, Miss MacLean had stated to her that the defender "would have it all" (i.e.,her money) "some day." Another witness, Miss Munro, who was the defender's housekeeper from 1921 until June 1929, deponed that Miss Mackay, the defender's sister, had told her about the deposit-receipt and had stated that the sum on deposit "was to be kept in the family." She also deponed that, on one occasion during Miss Mackay's lifetime, Miss MacLean had said in her presence: "She" (i.e., Miss Mackay) "will get all my money some day." She further deponed that Miss MacLean regarded the Mackays as all the relatives she had.
On 11th December 1931 the Lord Ordinary (Moncrieff) sustained the defender's fourth plea in law and pronounced decree of absolvitor.
At advising on 18th March 1932 the Lord President intimated the decision of the Court. The opinions of the judges were subsequently communicated to the parties.
LORD PRESIDENT (Clyde).—A mortis causadeed is one which is made
in contemplation of the granter's death and takes effect only on his death, and—even so—only in so far as not revoked by him on, or before, his death. On the other hand, a mortis causadonation is one which is in like manner made in contemplation of the donor's death, but takes effect immediately as a de prœsenti transfer of the property to the donee, subject to a double resolutive condition:—(a) If the donee predeceases the donor; (b) if, during the joint lives of donor and donee, the donor revokes. This is only another way of stating the same proposition as was propounded by Lord President Inglis in Morris v. RiddickUNK,1 and I venture to formulate it in this shape only to demonstrate how utterly alien a mortis causadonation is from the department of wills and succession. When themortis causa donor predeceases the donee without having revoked, nothing passes by succession or otherwise to the donee; he is then (as he has been all along) owner of the property by virtue of thede prœsenti donation, the only difference being that the double resolutive condition to which the donation was subject has flown off, in both its branches. The resolutive condition in a mortis causa donation has a certain resemblance to the pactum legis commissoriœ in a sale—Erskine, III. iii. 11; but more closely resembles the condition which used to be implied in a donationinter virum et uxorem, where the gift became irrevocable only on the death of the donor, but continued to be revocable so long as the donor was in life even though the donee had predeceased.A mortis causa deed must be in writing (except with regard to nuncupative legacies of small amount), and its intention and effect depend on the terms employed by the granter. But the existence of amortis causa donation depends (apart from the fact of delivery) upon evidence prout de jure. In the proof three essentials must occur:—(1) The donor must act in contemplation of his death, (2) the subject of the donation must be delivered to the donee, and (3) the donor must manifest his intention to make in favour of the donee ade prœsenti...
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