Scottish Court of Session Decisions

This action was brought to prove the tenor of four testamentary writings executed by the late Mrs Macdonald of Lassintullich, in and prior to October 1860, which the pursuers founded on as containing their title to sue an action of reduction on the ground of facility and circumvention of a disposition and deed of settlement executed by Mrs Macdonald in favour of the defender, her son, on 9th May 1863. The reduction had been sisted by Lord Kinloch until the present action was brought and disposed of ( ante, vol. i. p. 88). The pursuers averred —

Cond. 8. The said Mrs Macdonald was a very old woman, being upwards of eighty years of age, and in or about the beginning of the year 1862, her infirmities both of body and mind had so much increased as to render her an entire imbecile, of unsound mind, memory, and understanding, incapable of managing her affairs, or of performing or understanding the effect of any legal act. She continued in this state, gradually becoming worse, till her death in January 1865.

Cond. 9. While the said Mrs Macdonald was in the said imbecile and unsound state of mind, the pursuers believe and aver that the four writings above-mentioned, which constituted her settlement, were destroyed or otherwise made away with, either without her authority by those about her, or by herself, or under directions obtained from herself, at a time when she was imbecile and of unsound mind, and incapable from mental infirmity of understanding what she did.

Cond. 10. More particularly the pursuers believe and aver that upon the marriage of the pursuer, Mrs Kennedy, which took place in May 1862, the said deceased Margaret Macdonald (a sister of the female pursuer and of the defender), and thereafter the defender David Macdonald, obtained complete possession of the said Mrs Macdonald, and of her house in which she lay bedridden, as she had done for some years, and having access to her repositories, and possession of all her papers, the said Margaret Macdonald and David Macdonald, or one or other of them, did fraudulently, and without authority from the said Mrs Macdonald, destroy or otherwise make away with the four deeds of which the tenor is sought to be proved in the present action.

Cond. 11. Otherwise the said deeds were destroyed by the said Mrs Macdonald, or by the said Margaret Macdonald or David Macdonald, or some other person or persons, under directions obtained from the said Mrs Macdonald, at a time when she was imbecile and of unsound mind, memory, and understanding, incapable of understanding what she did, or of performing any legal act.

Cond. 12. Otherwise the said deeds were destroyed by the said Mrs Macdonald, or by some other person or persons, under directions obtained from her, when she was in a weak and facile state of mind, and easily imposed upon, and they were so destroyed or directed to be destroyed by means of fraud and circumvention employed by the said Margaret Macdonald or David Macdonald, who, or one or other of whom, took advantage of the said Mrs Macdonald's weak and facile state of mind to impetrate and obtain from her the destruction of the said deeds to her lesion.

Cond. 13. The said deeds, however disposed of, were not in the deceased's repositories at her death, and are now lost and cannot be found, although the most diligent search has been made for them, and the pursuers are therefore under the necessity of instituting the present action to prove their tenor.

Page: 172↓

The defence was that the documents were got up by the deceased in July 1862, from her agent, John Galletly, S.S.C., for the purpose of destroying them, and were accordingly destroyed by her or by her orders; and that at that time she was of sound mind and perfectly capable of managing her own affairs. The defender also pleaded that the statements of the pursuers were not sufficiently specific.

The Lord Ordinary (Kinloch) made great avizandum to the First Division.