Prentice (Hutchieson's. Executrix) v. Shearer [1908] ScotLR 15 (23 October 1908)

Prentice (Hutchieson's. Executrix) v. Shearer [1908] ScotLR 15 (23 October 1908)

Delivery of a mortis causa donation may be effected through a third party and need not be made personally to the donee; sufficient corroboration of delivery existed through third-party testimony and the indorsation and delivery of the deposit-receipt. The gift of the balance to the defender was not proved due to lack of corroboration.

Citation
[1908] ScotLR 15
Parties
Pursuer (reclaimer): Mrs Jane Prentice (Hutchieson's Executrix); Defender (respondent): William Shearer
Jurisdiction
Scotland
Judgment Date
23 October 1908
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; judgment of Lord Ordinary adhered to.
Legal Topics
Donation Mortis Causa, Proof of Delivery, Constructive Delivery, Distribution of Estate, Animus Donandi
Succession Law Property Law Donation Mortis Causa Proof of Delivery Constructive Delivery Distribution of Estate Animus Donandi

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Parties

Mrs Jane Prentice (Hutchieson's Executrix)

Pursuer (reclaimer)

William Shearer

Defender (respondent)

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether delivery of a mortis causa donation must be made personally to the donee or may be effected through a third party
  2. 2 Whether sufficient proof of delivery and animus donandi existed for the disputed sums

Ratio Decidendi

Delivery of a mortis causa donation may be effected through a third party and need not be made personally to the donee; sufficient corroboration of delivery existed through third-party testimony and the indorsation and delivery of the deposit-receipt. The gift of the balance to the defender was not proved due to lack of corroboration.

Court Disposition

Appeal dismissed; judgment of Lord Ordinary adhered to.

Orders

  • Pursuer entitled to recover £58, 10s. 1d. with interest at 5% per annum from 11 May 1907 until payment, less £6 for funeral expenses paid by defender.
  • Defender assoilzied (absolved) quoad ultra from conclusions of the action.