Scottish Court of Session Decisions

In April 1866 David C. Wills was appointed judicial factor on the estate of David Milne, weaver in Bervie. The petition on which the appointment proceeded stated that Milne had disappeared on 15th or 16th January 1866, after he had, while in a state of intemperance, threatened to commit suicide; and no trace of him had since been found, except a hat which had been worn by him, and which was found on the beach at Bervie. Milne was proprietor of certain house property in Montrose. In May 1867, John Milne, a brother of David Milne, presented a petition to the Sheriff of Kincardineshire, praying to be served heir-in-general to David Milne. After answers by the judicial factor, and a proof by the petitioner, the Sheriff pronounced decree, finding that David Milne had died on or about 16th January 1866, and serving the petitioner. The petitioner took infeftment as heir of his brother David in the property owned by him, and now presented a petition for recal of the factory quoad these heritable subjects, and for discharge of the factor's intromissions so far as related to them. The factor lodged answers, not absolutely opposing the petition, but pointing out the absence of proof that Milne was dead. The Court, after hearing the parties, ordered the petitioner to state more specifically what he averred and offered to prove with reference to the disappearance of David Milne. The petitioner accordingly lodged a minute stating that David Milne at the date of his disappearance was sixty-seven years of age. He had resided in Bervie for about thirty years. Since the death of his mother in 1848 he had resided alone. After succeeding to the house property in Montrose he had speculated to some extent, and had been obliged, in consequence of losses, to burden his property to the extent of £500. After 1840, he had no income except what he earned as a weaver, and the surplus rent of his property. He was not of provident habits, and was always needy. Before January 1866, his earnings had greatly fallen off in consequence of failing eyesight, and consequent want of employment. From 5th to 15th January he was drinking, and frequently threatened to commit suicide, and on the morning of 16th January he left his house with no clothes but what he was wearing, and no money beyond a shilling or two. Footmarks of a full-grown man were traced to the sea at the place where the people of Bervie had access to the shore, but no return steps could be seen, and his hat was found on the shore as if blown one or two hundred yards from the mark of the footsteps. It was the common repute that Milne was drowned.

The Court, instead of remitting for proof, allowed the factor to give in answers stating how far he was in a position to admit these averments. In his answers he did not admit the statements as to the needy condition and improvident habits of Milne. He knew nothing of the history of Milne's disappearance, but admitted that the petitioner's statements on that head had been deponed to by witnesses examined before the Sheriff in the petition for service, that evidence, however, being ex parte. The factor suggested that if the prayer of the petition was granted, the petitioner should find caution.

The case came again before the Court.