Scottish Court of Session Decisions

The pursuer of this action was the eldest son and the defenders were the daughter and younger son of the deceased Robert Alexander, portioner and boat-builder, residing at Swinton, near Baillieston, in Lanarkshire. The pursuer seeks to set aside three written agreements made by him with his brother and sister in regard to the succession of their father, who died intestate. What he complains of is that by fraudulent misrepresentation or concealment, and in ignorance of the nature of his father's property and his right and interest therein, he was made to abandon valuable rights as heir-at-law, and to consent to an equal distribution of the whole property, heritable and moveable, subject to certain subsidiary arrangements. The averments of fraud and essential error were denied.

In order to try the questions thus raised the pursuer proposed three issues, putting the question in regard to each of the three agreements, whether it was fraudulently impetrated from him by the defenders, or one or other of them; and also a fourth issue, putting the question in regard to all the agreements, whether they were signed by him under essential error as to the nature and extent of the estate of his father and of his legal rights therein.

The defenders objected to the issues on fraud that they should be laid not on fraud but on fraudulent misrepresentation or concealment, and should state (though generally) to what these were made applicable. They also objected to the fourth issue, on the ground that there was no relevant averment of error as a separate ground of action from the fraudulent misrepresentation and concealment.

The Court to-day granted an issue in regard to each agreement, whether it was impetrated from the pursuer by fraudulent misrepresentation or fraudulent concealment on the part of the defenders, or one or other of them, in regard to the nature and extent of his father's estate and of his legal rights therein. The issue founded on essential error was disallowed, on the understanding that evidence of error on the part of the pursuer would be admissible as evidence of the issues, which were allowed.