Scottish Court of Session Decisions

This was an action of reduction by the widow and children of the deceased John Gilchrist of Summerside Place, Leith, in which they sought to set aside certain testamentary writings of the deceased Mrs Jemima Gilchrist or Purdy, who was also a daughter of John Gilchrist.

The pursuers averred that in 1889 Purdy was in a failing state of health, and that (Cond. 10) “About the middle of December she sent for the family law-agent, Mr Asher, and gave him instructions to make a fresh will, as she knew her illness was incurable, and she wished to make a final settlement of her affairs in prospect of an early death. Mr Asher accordingly prepared a trust-disposition and'settlement, which was executed by her on the 16th day of December 1889, and by which she conveyed her whole means and estate to Mr Asher and his managing clerk Mr John Rose, whom she appointed her trustees and executors. The purposes of the trust were, inter alia—1. Payment of debts, funeral expenses, &c. 2. Payment of the following legacies free of duty at the first term of Whitsunday or Martinmas after her death—(1) To Mrs Jane Molinda Goodlet or Morrison (the defender) £500; (2) To Mrs Elizabeth Watson or Hume (an aunt) £100; (3) To Mrs Elizabeth Allan or Blair £100; 3. Payment to the pursuer Mrs Gilchrist during her life of the free annual income or revenue to be derived from the remainder of her means and estate. 4. Payment of the following legacies at the first term of Whitsunday or Martinmas after Mrs Gilchrist's death—(1) To Mr Rose, one of her trustees, £1000; (2) To the Leith Hospital £300; (3) To the Leith Industrial Schools £300; (4) To the Redhouse Home for Destitute Boys, Musselburgh, £300. 5. Lastly, the trustees were directed to pay and convey the residue and remainder of her means and estate to the pursuers William Gilchrist and Jane Alexander Gilchrist, her brother and sister, equally between them, or to the survivor in the event of the other dying without leaving lawful issue. The said will was carefully prepared by the instructions of Mrs Purdy, and it was fully considered by her before she signed it. The said deed contained the real wishes of the testatrix with regard to

Page: 442↓

the disposal of her estate after her death.” In Cond. 13 they averred that on 20th January 1890 the deceased executed another will, whereby she left a few legacies to the amount of £1000, and the remainder of her estate to the defender Mrs Morrison. The pursuers were entirely excluded. (Cond. 14) “On or about 6th February thereafter another will is alleged by the defender Mrs Morrison to have been executed by the said Mrs Purdy. By this deed, which is called a last will and testament, Mrs Morrison was appointed sole executrix and universal legatory, and Mrs Purdy's whole estate conveyed to her under burden of payment of a legacy of £500 to Mrs Cochrane, and £100 each to Mrs Hume and Mrs Blair, as in the immediately preceding will. The said last will and testament was prepared by Mr P. P. Slater, solicitor, Edinburgh, who is a relative of Mrs Morrison.”

At the adjustment of the record the following additional averment was made—“The pursuer William Gilchrist is Mrs Purdy's heir-at-law, and the pursuer Jane Alexander Gilchrist is one of her next-of-kin.”

The defenders Mrs Morrison and the trustees under the deed of 20th January stated—“It is explained that on the 28th January 1890, the testatrix being then of sound disposing mind, and fully understanding and comprehending the legal results of such action, sent for Mr Peter Peterson Slater, solicitor and law-agent, and after requesting him to act as her agent, explained to him that the said trust-disposition and settlement in the said condescendence mentioned, had been in fact revoked by the will prepared by Mr Asher, and executed on the 20th January, as mentioned in condescendence 13, and desired Mr Slater to destroy the same in her presence as useless and as not expressing her will, which Mr Slater accordingly did. Such destruction was deliberately done animo revocandi, and the said trust-disposition and settlement is not now in existence.”

The pursuers alleged—“With reference to the statement in answer, the pursuers have no knowledge whether the will in question was destroyed or by whom it was destroyed. If Mrs Purdy destroyed it as stated by the defender, she did so in consequence of the defender having by fraud or circumvention induced her to do so while she was weak and facile and easily imposed upon.” They also averred that upon 6th February 1890 Mrs Purdy executed the deed of gift (now sought to be reduced), which she delivered there and then to the defender.

The pursuers pleaded—“(1) The deeds sought to be reduced, not being the deeds of the late Mrs Purdy, ought to be set aside in terms of the conclusions of the summons. (2) Separatim—The said deeds ought to be reduced, in respect that at the dates when the same were executed, the deceased Mrs Purdy was weak and facile in mind and easily imposed upon, and that the said Mrs Morrison and John Goodlet, or one or other of them, taking advantage of her said weakness and facility, did by fraud or circumvention impetrate the said deeds from Mrs Purdy to her lesion. (3) The trust-disposition and settlement of 16th December 1889, being the deed regulating the succession to the deceased Mrs Purdy's means and estate, the pursuers are entitled to decree in terms of the conclusions of the summons.”

The defenders pleaded—“(1) No title to sue. (2) The pursuers' averments are not relevant to support the action. (3) The deed of 16th December 1889 having been duly revoked, and that of the 6th February 1890 having been voluntarily executed by the testatrix while of sound disposing mind and full capacity, the latter, as expressing the real wishes of the testatrix in regard to the disposal of her means and estate, regulates the succession.”

On 15th January 1891 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—Sists process in hoc statu in order that the pursuers may, if so advised, raise an action of proving the tenor of the trust-disposition and settlement executed on 16th December 1889 by Mrs Jemima Gilchrist or Purdy, upon which they found &c.

“ Opinion.—This action is laid entirely on the footing that the deed by which the succession to the means and estate of the deceased Mrs Purdy falls to be regulated is a trust-disposition and settlement dated 16th December 1889, under which the pursuers are beneficiaries to a large extent. The pursuers claim as beneficiaries under that deed, and the conclusions of the summons and the statements on record, especially those in condescendence 10 show that that deed is the title on which they rely. It is true that they now state that the pursuer Willian Gilchrist is Mrs Purdy's heir-at-law, but so little was that in view when the action was raised, that the fact was not stated in the original condescendence.

Now the deed of 16th December 1889 is not forthcoming. It is stated by the defender — and there is little reason to doubt the truth of the statement so far—that it was destroyed on the 28th January 1890, about a week after the execution by Mrs Purdy of a trust-disposition and settlement dated 20th January 1890, which is the first in date of the deeds under reduction. In these circumstances I think it is necessary for the pursuers to prove the tenor of the deed of 16th December 1889 on which they found. In doing this they will have to prove the casus amissionis; and if it is true that the will was destroyed by the orders of Mrs Purdy, to prove that she was not then in such a state of mind as to be capable of effectually cancelling or revoking it. The question to be tried in the action of proving the tenor will therefore practically be the same as that sought to be raised in this action. But an action of proving the tenor proceeds in the Inner House, and therefore the present process must be sisted until the pursuers take steps to set up the deed of 16th December 1889— Shaw v. Shaw's Trustees

Page: 443↓

3 R. 813, and Bonthrone v. Ireland, 10 R. 779.

The pursuers strongly maintain that William Gilchrist, being heir-at-law and entitled to succeed to the heritage left by Mrs Purdy, if she died intestate, he is in any case entitled to sue the action and challenge the deeds under reduction. As I have already indicated, the summons is so framed that I do not think it can proceed as an action at the instance of the heir. But, further, if the pursuers' averments are true, William Gilchrist as heir-at-law was cut out by the deed of 16th December 1889, and the parties really entitled to challenge the subsequent deeds are the disponees or beneficiaries under that deed.”

The pursuers reclaimed, and argued—That they had a double title to sue, and under one or other of these titles they must prevail. (1) They were disponees under the deed alleged to have been destroyed, and (2) they included in their number the heir-at-law and one of the next-of-kin of the testator, and they were entitled to have the deed granted by the deceased to their prejudice set aside if they could. If the deed of 16th December was destroyed the pursuers had a good title as heir and next-of-kin, while if it was not destroyed then they took as residuary legatees. The present case differed from the case of Shaw; there a proving of the tenor was necessary, because the deeds which could not be recovered constituted the pursuer's title to sue. Here the pursuer fell back on his title as heir-at-law. The questions to be tried were, (1) whether the deed of 16th December 1889 was destroyed as part of a fraudulent scheme;? (2) As to the validity of the deeds of 20th January and 6th February? and these questions could best be determined by an issue in the usual terms.

Argued for respondents—There was a question here not only of the pursuer's title to sue but also of his interest, as he could not be both disponee and heir-at-law at once — for example, an heir could not reduce ex capite lecti if he had already been disinherited— Gordon v. Robertson, October 28, 1873, 11. S.L.R. 35. The pursuer sought a declarator that the deed of 16th December was good, and any questions of fraud in connection with its loss could as efficiently be tried by a judge as by a jury. The case of Bonthrone, supra, supported the contention that all the questions raised by the present case could be satisfactorily disposed of in a proving of the tenor—see M'Millan v. The Free Church, December 23, 1859, 22 D. 290, and 24 D. 1282,

At advising—