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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macfarquhar v. M'kay [1869] ScotLR 6_500 (18 May 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0500.html
Cite as: [1869] ScotLR 6_500, [1869] SLR 6_500

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SCOTTISH_SLR_Court_of_Session

Page: 500↓

Court of Session First Division.

Tuesday, May 18. 1869.

Lord President

6 SLR 500

Macfarquhar

v.

M'kay.

Subject_1Donation mortis causa
Subject_2Irrevocable Gift—Proof— Account of Daily Expenses—Tender.
Facts:

Held, on a proof, that money had been given as a donation mortis causa, which was afterwards revoked, and that the donee was bound to refund under deduction of all expenses incurred by him for behoof of the donor on the footing that the gift would not be revoked.

Headnote:

Opinion, that these expenses were sufficiently proved, being entered in a regularly kept daily account, being of a character for which it was not natural to take vouchers, and there being no counter evidence.

Expenses to donee, he having tendered a larger sum than was found due by him.

In this action the pursuer sought to recover payment of the contents of a deposit-receipt which she had handed to the defender. The defender alleged that the pursuer had, when ill, stated to him that she wished him to take her money, she getting the interest while she lived, or he otherwise providing for her. He took the money, and after some time, the pursuer having recovered, took her to reside in his own house, and made sundry advances for her behoof. He tendered £40 for a discharge of the pursuer's claim in this action. After a proof, the Sheriff (Ivory), recalling the interlocutor of his substitute, found that the pursuer had made an irrevocable donation of the money to the defender, on the condition that he was to provide for her if she lived, and see her respectably buried if she died.

The pursuer advocated.

Mackay for advocator.

Kerr for respondent.

At advising—

 Judgment:

Lord President—The ground of the Sheriff's judgment is to be found in his first finding, which is, “that on or about 4th February 1865 the deposit-receipt for £120, of which No. 14 of process is a certified copy, granted by the British Linen Company, Inverness, in favour of the pursuer, was indorsed by the latter, and delivered by her to the defender, as an irrevocable donation thereof, and of the sum contained therein, but upon the condition that he was to provide for her if she lived, and see her respectably buried if she died.” Now, apart from the question, whether there is evidence to support this finding, I am of opinion that it is in law self-contradictory. If the Sheriff means that this was a donatio inter vivos, he would be right in distinguishing it as an irrevocable donation, but I cannot understand how a donation that is irrevocable can be coupled with a condition of an onerous kind. That is no donation at all. It may be a gift in a certain sense, but it cannot be what is known to the law as donation.

Page: 501↓

If, on the other hand, the Sheriff means that this was a mortis causa donation, that is wrong also, for a mortis causa donation is not irrevocable. So that he is wrong in either view. I think on the evidence that there was a gift, and that it was a donation mortis causa, and one of that kind which was recognised in Morris v. Riddick. I think the gift was made in the prospect of death, to take immediate effect as a transfer of property in favour of the donee, but on the condition that the donee should hold for the granter so long as she lived, subject to her revocation, and, failing such revocation, then to hold for his own behoof. Now, it is said that there was appended to this an understanding that if the old lady recovered the donee was to provide for her. If the annexation of that condition prevents it from being a proper mortis causa donation, and makes a composite transaction, then I am of opinion that that transaction cannot be proved by parol. It is only on the footing that it is a mortis causa donation that we can receive the evidence led in the Inferior Court. There is no doubt here that the donee did maintain the old lady, and made advances directly and for her behoof.

The result is, that I think the pursuer is entitled to revoke the gift, and I think she does so effectually by this action. But she cannot recover the entire sum handed over to the donee, but must suffer deduction of the sums advanced, and the expenses incurred by the defender on the faith of this gift remaining unrevoked, and becoming his property on the death of the pursuer. The only question is, What deductions are to be made? The first thing to be considered is the account of £36 for advances of money to and for behoof of the pursuer. The pursuer only admits them to a limited extent, and I think the Sheriff-substitute has allowed them only to the extent of the admissions of the defender. I cannot agree with him there. Here is a detailed account kept in a note-book to which the man swears. They are not advances for which he would naturally take vouchers, and I think it is sufficient to prove a series of advances of this kind, which are made the subject of a daily account, if the party keeping the account swears to it, and there is no counter evidence. Therefore, I think the defender is entitled to make this deduction of £36. Then there is £52 claimed for board. It can hardly be disputed that as this pursuer lived for twenty-one months in the house of the defender, and was maintained there, with apparently considerable attention to her wants, the rate of board to be allowed is not to be such as would be justified by a poor-law board. The amount of 7s. a-week is I think too low. The amount proposed by the pursuer is ludicrous. I think we ought to allow 12s. a-week for board. In round numbers the sum for which the pursuer is entitled to decree will be £35.

The other Judges concurred.

Expenses awarded to defender, in respect of his having made tender of £40.

 Counsel:

Agent for Advocator— C. S. Taylor, S.S.C.

Agents for Respondent— Murdoch, Boyd & Co., S.S.C.

 1869

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URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0500.html