Scottish Court of Session Decisions

Mrs Agnes Miller or Cruickshank, Glasgow, executrix quoad omissa of her mother the late Mrs Agnes Jack or Miller, pursuer, brought an action against James Graham and John Jackson Coats, the testamentary trustees of the late Miss Isabella Miller, and others, and against certain charitable institutions for their interest, defenders, concluding for an accounting of the trustees' and the said Miss Isabella Miller's intromissions with the estate which belonged to the late Mrs Agnes Jack or Miller at the time of her death, and was taken possession of by the said Miss Isabella Miller.

The following narrative of the facts is taken from the opinion of the Lord President:—“The late Mrs Agnes Miller was left a widow in 1849 with a young family of six children. She had a licensed grocer's business and a farm which had belonged to her husband. The latter was given up, but by means of the former she succeeded in bringing up her children. As time went on, and all the children save one married or became self-supporting, she was able to accumulate a little money, and this she invested at first in heritable security, and later in shipping shares, and on deposit-receipt with her bank. Up to 1884 or thereby these investments took the form of heritable securities and deposit-receipts. The former were taken to Mrs Miller in liferent and her two then remaining unmarried daughters (Margaret and Isabella) in fee, while the deposit-receipts were taken in the names of Mrs Miller, Miss Margaret Miller, and Miss Isabella Miller, payable to any one of them or the survivor. Miss Margaret married in 1885. From about that time onwards investments in shipping companies took the place of the heritable securities. As the latter were repaid the amounts were subscribed by Mrs Miller to ship companies, the shares being issued sometimes in her own name and sometimes in the name of the then sole remaining unmarried daughter Isabella. From 1886 onwards the deposit-receipts were taken in the name of Mrs Miller and Miss Isabella Miller, payable to either or the survivor. In short, after Miss Margaret's marriage her name was allowed to drop out of the titles to the investments in which Mrs Miller placed her accumulated savings. When Mrs Miller died intestate in 1900 she was still carrying on the licensed grocer's business with the assistance of her daughter Miss Isabella Miller. One of the ship shares stood in Mrs Miller's name, the others in Miss Isabella's name. All the heritable securities had been repaid, and the deposit-receipts (to the extent of £3094, 14s. 1d.) were in the name of Mrs Miller and Miss Isabella Miller, payable to either or the survivor. It is not surprising in these circumstances that the pursuer, one of Mrs Miller's daughters who married in 1866, should believe and aver that the whole of these assets were her mother's, and notwithstanding the form of the titles in which they stood were in bonis of her when she died. But the pursuer and her brothers and sisters other than Miss Isabella Miller were content after Mrs Miller's death to leave the whole of them in Miss Isabella Miller's hands, and made no claim to any of them during Miss Isabella Miller's lifetime. Even the premises in which Miss Isabella Miller lived and the licensed business was conducted, and which belonged to one of her brothers, were allowed to remain in her occupation rent free. The licence was transferred to Miss Isabella Miller's name on 28th February 1901. The pursuer says that she and her brothers and sisters simply allowed Miss Isabella Miller to ‘carry on,’ trusting that she would do right in the matter of her mother's estate. She took no steps to administer that estate until 23rd October 1901, when she employed a solicitor to take out confirmation in her own name and in that of one of her brothers to (1) the household furniture, (2) the shipping share in Mrs Miller's own name, and (3) some trifling sums of cash amounting in all to £179, 18s. 11d. Nearly a year before, on 12th November 1900, she had uplifted the deposit-receipts and redeposited them in her own name. Not a word was said to the solicitor about them or the business or the other shipping shares. The solicitor tells us that the brother who became co-executor took no personal concern in the affair except in

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connection with the declaration of ownership in the shipping share which stood in Mrs Miller's name and the endorsation of some cheques for the dividends on it. The pursuer did not even know that this confirmation had been obtained, and it is certain that beyond payment of a few sums as dividends on the ship share above mentioned no accounting of any kind was made by the executors to any of the family for any part of Mrs Miller's estate, and they never asked to be and never were discharged. In 1904 a balance of £48 was handed over to the executors by the solicitor on an account of charge and discharge between him and them, but nothing more took place. The brother who had been appointed co-executor died in 1913, and Miss Isabella Miller employed the estate which came into her hands in the way just described in a series of successful operations on the Stock Exchange. She died on 12th September 1918, and by her will she bequeathed estate amounting to nearly £30,000 to the charitable institutions which have appeared along with the trustees to defend the present action.”

Mrs Miller's trustees and the charitable institutions compeared as defenders and pleaded, inter alia—“2 The pursuer's claims are barred by mora, taciturnity, and acquiescence. 4. The estate included in the inventory of the said Miss Isabella Miller being her own personal property, the defenders should be assoilzied.”

On 9th March the Lord Ordinary ( Hunter) after a proof sustained the fourth plea-inlaw for the defenders and assoilzied them from the conclusions of the action.

Opinion.—[ After a narrative of the facts]—“The real difficulty in the case is whether the pursuer as executrix ad omissa on her mother's estate is entitled to an account for the sum of £3094 on deposit-receipt in name of Mrs Miller and of Miss Isabella Miller and survivor, or any part thereof.

It is well settled that a deposit-receipt does not operate as a will containing a bequest of money in favour of the person in whose name it is conceived, failing the deceased. If, however, it is shown that the money deposited belonged to the deceased the terms of the deposit-receipt may afford some evidence of intention which requires corroboration in order to instruct a gift—see Crosbie's Trustees v. Wright, 7 R. 823.

So far as the present case is concerned the pursuer maintains that it ought to be inferred that the whole of the money on deposit-receipt came from funds belonging to the late Mrs Miller, but I do not think that this is proved or even that it would be a safe inference to make. Alternatively it was maintained that in the absence of proof as to the source from which the money came it must be assumed that to the extent of one-half it came from Mrs Miller. The defenders maintain that owing to the great lapse of time that has taken place before any question was raised I ought to assume either that the whole of the money had come from Miss Isabella Miller's funds or that to the extent to which this was not so I ought to assume that Mrs Miller had gifted it to her daughter. In Bain v. Assets Company ( 7 F. (H.L.) 104) the Lord Chancellor, speaking of delay in bringing an action similar in duration to that which has occurred here, said—‘At this distance of time every intendment should be made in favour of what has been done as being lawfully and properly done, and that the persons who are now insisting upon these rights have lain asleep upon their rights so long that as a matter of fact we know that witnesses have perished and the opportunities which might have been had if the question had been earlier raised have passed away.’ There is no doubt about the great prejudice which the defence has suffered from delay in bringing the present action. Not only is Miss Isabella Miller herself dead, but her brothers William and John and her sister Mrs Wilson are also no longer in life, while her sister Mrs Rankin is not in a position to give evidence.

The pursuer, however, contends that the defenders cannot plead the prejudice they have suffered, as the action is founded upon breach of duty of an executor. In certain cases there would be force in this argument. It has to be kept in view, however, that Miss Isabella Miller was only one of two executors of her mother. I find it difficult to suppose that Dr John Miller and Mr William Miller did not know about the deposit-receipts, or that their reason for refraining from calling upon their sister to account for them was not due to the circumstance that they knew that she had a just claim to the contents thereof. The pursuer herself admits that she knew there was money in the bank, and she gives, so far as I follow her evidence, no satisfactory explanation for refraining from asking an accounting in the lifetime of Miss Miller. At this distance of time I presume the facts as regards these deposit-receipts in favour of the defenders.

In my opinion the fourth plea-in-law for the defenders ought to be sustained, and they ought to be assoilzied from the conclusions of the action.”

The pursuers reclaimed, and argued—The Lord Ordinary was wrong in presuming the facts as regards the deposit-receipts against the pursuers. Bain v. Assets Company ( 1905, 7 F. (H.L.) 104, 42 S.L.R. 835) did not apply in a case like this where executors had failed in their duty to account and had never applied for a discharge. The onus of proof was therefore on Miss Miller's trustees. There was a strong inference that the sums on deposit-receipt, the source of which was the widow's business, were her property at the time of her death, and in the absence of proof of donation the widow's executrix was bound to account for the amount of these sums, or alternatively for half of that amount. Further, Miss Miller had by her actings taken upon herself the character of a trustee who was bound to account for the profits— Cochrane v. Black, 1855, 17 D. 321. The relations between the pursuer and Miss Miller's trustees could not be regarded as merely that of creditor and debtor— Ainslie and Others v. Ainslie, 1886, 14 R. 209, per Lord President Inglis at p. 211, 24 S.L.R. 164.

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Argued for defenders—The pursuer having in full knowledge that Miss Miller was using the assets as her own property waited without making any objection until all the people who could give evidence were dead, was barred by mora and acquiescence from making her present claim. The source of the money could not be proved. It must now be assumed that Miss Miller had acted properly, and the onus was on the pursuer to prove that the money deposited was not hers— Bain v. Assets Company, cit. sup. In the absence of such proof it was not for the defenders to maintain that there was donation, but donation should also be assumed— Brownlee's Executrix v. Brownlee, 1908 S.C. 232, 45 S.L.R. 184. Donation could be proved by facts and circumstances corroborating the terms of the deposit-receipts— Crosbie's Trustees v. Wright, 1880, 7 R. 823, 17 S.L.R.597, such as the terms of the share certificates. Further, MissMiller was not a trustee for creditors, and the pursuer, who was in the position of a creditor and not of a beneficiary, could not claim profits— Globe Insurance Company v. M'Kenzie, 1850, 7 Bell's App. 296; Jamieson v, Clark, 1872, 10 Macph. 399, per Lord President Inglis at p. 405, 9 S.L.R. 233; Ainslie and Another v. Ainslie, cit. sup.; Stewart's Trustee v. Stewart's Executrix, 1896, 23 R. 739, per Lord M'Laren, p. 744, 33 S.L.R. 570; Philp's Executor v. Philp's Executor, 1894 21 R. 482, 31 S.L.R. 384; Ersk. iii, 9, 42.

At advising—