Scottish Court of Session Decisions

Lord Anderson.—In this action the pursuer, who is the only son and executor-dative qua next of kin of the deceased John Gibson, sues the defender for reduction of (1) a pretended holograph testament of the deceased, dated 31st July 1922; and (2) a pretended holograph writing in favour of the defender, dated September 1922, signed by the deceased. Decree is also craved for payment of the sum of £240, the amount referred to in the second writ sought to be reduced. Issues were adjusted for the trial by jury of the reductive conclusions of the summons. As to each writ two issues were adjusted, one raising the question whether the document was not the deed of the deceased, the other raising the question whether the writ was impetrated by the defender by fraud or circumvention while the deceased was weak and facile in mind. A jury, presided over by Lord Blackburn, unanimously returned a verdict in favour of the pursuer on the two issues of facility and circumvention. The jury returned no verdict as to the other issues. As a matter of proper procedure I am of opinion that the jury should have found for the defender on those other issues. The defender moved for a rule on the pursuer to show cause why the verdict should not be set aside as being contrary to the evidence. This motion was granted, and counsel have been heard on the rule. As the result of the debate, I have reached the conclusion that the rule should be discharged and the verdict applied in the pursuer's favour.

There are two general considerations which seem to me to support the jury's verdict. The first is that the action is eminently one for the arbitration of a jury. The mental condition of the deceased and the circumstances attending the execution of the deeds challenged are matters with which a jury is peculiarly qualified to deal. Having seen and heard the witnesses who gave evidence, a jury is, in my opinion, a tribunal much more likely to reach a just decision in a case of this nature than a Court of review dealing with the matter through the medium of printed pages. The other consideration is that the Judge who presided at the trial, and who also heard and saw the witnesses, is, I understand, satisfied with the verdict. This circumstance is, of course, not conclusive; but, in my opinion, it is a circumstance which ought to have great weight with a Court of review. Speaking for myself, I should, in face of such approval,

require the clearest demonstration of error on the part of the jury before giving a vote which would upset the verdict. I remind your Lordships of the observations on this topic made by Lord Shaw of Dunfermline in the case of Clarke v. Edinburgh and District Tramways Co., which seem to me to be peculiarly applicable to the present case.

If the salient features of the case are dispassionately set forth, it is difficult to hold that the jury could have pronounced, on the two issues with which they have dealt, any other verdict than that which they reached. The granter of the two deeds which are challenged is clearly proved to have been a senile, silly, and illiterate man. At the time when the deeds were executed he was living with the defender, and was completely under her control. When the two deeds were executed no solicitor or other neutral party was called in by the defender to ensure that the granter had a clear perception of what he was doing. The will was written out and signed before the instrumentary witnesses were summoned. It was signed a second time in their presence. The defender knew that the deceased had recently expressed his intention of bequeathing all his means to his only son, but, although she knew that this intention was being almost completely defeated by what was being done, she did not, during the lifetime of the granter, and in order that the validity of what he had done might be properly tested during his lifetime, transmit the deeds to the pursuer or to any neutral person, such as the banker of the deceased. On the contrary, without divulging to anyone that the deeds had been granted, she waited until the death of the granter, and then produced and founded on the documents. There are other points in the case unfavourable to the defender to which I shall allude in the sequel, but this bald narration of the leading features seems to me to be a prima facie justification of the jury's verdict.

When the other adverse points to which I have referred are taken into account, I have no hesitation in holding that it has been satisfactorily established that the deeds challenged fall to be reduced. I should, on that evidence, have reached the same conclusion as the jury.

I do not propose to make an anxious examination of the evidence with the object of endeavouring to estimate what is its exact significance and effect. No such duty, I take it, is imposed on the Court in a case of this nature. It is enough for a decision in the pursuer's favour that the Court is able to find that the verdict is supported by such evidence as, quantitatively and qualitatively, seems to the Court to be sufficient in law to justify that verdict. I have no difficulty in holding that there is in the case evidence of this extent and character.

I agree that the pursuer must prove both facility and circumvention. As regards facility, the defender's counsel made an admission which seemed to me to be fatal to his contention that facility had not been proved. It was conceded that the evidence led for the pursuer would have justified a verdict in his favour on the first and third issues, and that, if such a verdict had been returned, it would have been unassailable by way of review. To my mind that was a fatal concession. If the evidence might have warranted the conclusion that the mind of the deceased was completely incapacitated, it seems the shortest and easiest step from that to the conclusion that the deceased was facile in disposition. The evidence as to facility seems to me to be ample and of the best quality. It consisted of three main groups: (1) The pursuer and his wife, who best knew the deceased's character, disposition, and mental qualities; (2) the two bankers, men who are accustomed to judge of the mental capacity and business capabilities of their customers; and (3) three nurses, women specially qualified to speak as to a case of this nature. There was, in addition, the evidence of some ordinary witnesses, who spoke as to the mental capacity, or rather incapacity, of the deceased. The general effect of this evidence was to establish that the deceased was, as I have phrased it, senile and silly, childish in his conduct, unfit to be trusted alone on the streets, incontinent in his habits, illiterate, and of mental incapacity so marked as to disqualify him from framing the simplest of documents or propounding the most elementary of propositions. But, the defender contended, specific instances of pliability were not proved. Such specific proof, in my opinion, was unnecessary. The ordinary inference from the evidence I have alluded to is that the individual is of feeble will-power and easily influenced. If the defender designed to make out that the general result of the symptoms described was to set up a condition of strong-mindedness and not feebleness of will, this general condition should have been proved. It is true that there is evidence of isolated occasions when the deceased manifested stubbornness, and this is not surprising; but the jury might well infer that, although the deceased was sufficiently strong-willed to refuse to go to Shetland, his mind was nevertheless too facile and feeble to resist the impetration of a will by a dominant personality. There was, in my judgment, ample evidence to warrant the jury in holding that the deceased was facile.

With reference to the second point, that of fraud or circumvention, the defender's counsel complained that there had been no proof of any act of dishonesty on the part of the defender. Even if this contention had been well founded, which it is not, it would not avail the defender if the jury, on a consideration of the whole proof, were warranted in inferring that there had been circumvention—see Clunie, 17 D. 15. Such an inference is, in my opinion, amply warranted by what has been proved in the present case. I shall set forth, in detail, the facts proved, which seem to me to lead inevitably to the conclusion that the deeds were impetrated by the defender.

1. The deceased had again and again expressed the intention of leaving all his means to the pursuer, and this intention was well known to the defender. Apart from the terms of the will under challenge, there is no evidence that the deceased meant to change this intention, or had, in fact, done so. On the contrary, he not only remained on good terms with his son down to his death, but did two acts which were part fulfilment of his declared intention to leave all his means to his son: (1) On 29th April 1919 he made the pursuer the beneficiary under a policy of life assurance payable on his death; (2) On 13th August 1920 he took a deposit-receipt for the sum he had lodged in bank at Greenock in name of himself and his son, and made the receipt payable to either or survivor. Were the jury, on these proved facts, not entitled to conclude that the deceased had never changed his intentions as to his son, and that the deeds challenged must therefore have been impetrated?

2. It is proved that the defender was obsessed by the notion that she had some claim on the means of the deceased in respect of a certain sum which she understood her dead sister to have brought the deceased on her marriage to him. The jury might well have concluded that she had the deceased so much at her house, a somewhat disagreeable guest, for the sole purpose of getting from him something which would enable her to claim what she believed to be her dead sister's money.

3. A strong point against the defender was made by one of her witnesses (Peaston), who acted as an instrumentary witness to the will. He deponed that, some time before the will was executed, and therefore some time before it was drawn up, the defender asked him and Webster (the other instrumentary witness) if they would be witnesses to a will that the deceased was to make. He also deponed that the defender indicated that the will was to be in her favour, that it was something she was to benefit by. To my mind this is a sinister incident from which the jury might well have drawn an inference unfavourable to the defender.

4. Such an inference might also have been induced by a consideration by the jury of two things in connexion with the will (1) that it was fairly written out without blot or alteration, and (2) that it contained the word “bequeathed” correctly spelt and accurately used. On the pursuer's evidence the jury would be well justified in concluding that the deceased could neither spell that word nor use it intelligibly. They might, therefore, further infer with some justification, on this ground and on the form of the writing, that the will had either been written to dictation or from a copy made by the defender or her son-in-law, Mackie.

5. What impresses me most unfavourably against the defender is her conduct at and after the execution of the two deeds. I have already indicated how I think an honest woman would have acted. She knew the mental condition of the deceased was such that she herself would not let him go out of doors without a note of her address in his pocket. She knew of his intentions as to his son. It was her plain duty, in these circumstances, when he proposed to execute a will which would go so far towards defeating his intentions and give her so large a share of his estate, to call in a solicitor or some neutral man of business to ensure that the deceased understood what he was doing. Further, consider her conduct after the deeds had been executed. Mr Aitchison put the question, Why should she have divulged the will during the lifetime of the deceased? I should have thought the proper form of the query was, Why should she not have done so? I have, on this point also, already indicated what I consider the duty of an honest woman to have been, namely, to disclose the existence of these documents during the lifetime of the deceased in order that his capacity might be properly tested.

Two other points were taken by the defender's counsel. One related to the reference in the will to the pursuer. This is just the form I should have anticipated that an impetrated will would take. The defender knew that the pursuer would be the executor of the deceased, either nominatively, if he had already made a will, or datively, if no nomination had been made, and that the pursuer would have to deal with her legacy of £450.

The other point related to the sum of £240, as to which it was represented that dishonesty on the defender's part was negatived by reason of her communication to the pursuer of the payment of that sum. I am quite unable to agree with this suggestion. The defender knew that the pursuer, having endorsed the old deposit-receipt and received a new one, was aware of the amount which had been sent to Edinburgh, and she rightly surmised that he would be curious to know why so large a sum had been uplifted. She accordingly, on 18th September 1922, wrote the letter in which she states, with dubious accuracy, that the money had been placed in bank in her name. So far as we know this was never done. The draft was cashed and the proceeds handed to the defender. The proof is silent as to what she did with this cash. In my opinion the mere acceptance of so large a sum from a man in the mental condition of the deceased was, if not a dishonest, at all events an improper and dishonourable act. The defender must have known that the mental condition of the deceased was such that he could not have properly realised what he was doing with this large proportion of his estate.

On the whole matter the evidence satisfies me, as it did the jury, that the deeds under challenge were impetrated from the deceased when he was weak and facile in mind.

I am therefore of opinion that the rule should be discharged.

Lord Ormidale.—I agree with Lord Anderson that there is evidence sufficient to support the verdict of the jury, and that the verdict must stand; and, as I agree generally with the reasons stated by his Lordship for coming to that conclusion, I do not think it necessary to add to what he has said.

Lord Hunter.—This is a deplorable litigation. The pursuer in the action is the son of the first wife and the defender is the sister of the second wife of the late John Gibson, who died leaving a small estate of something under £1000. The object of the action is to set aside two deeds by which the defender claims a right to the bulk of the estate left by John Gibson. The deeds were executed in July 1922 and in September 1922, at the time when the deceased was residing with the defender in Edinburgh. There has been a jury trial lasting several days, and then there was a discussion before us also lasting several days. Four issues were presented to the jury, two bearing upon each of the deeds. The questions the jury were asked were, as regards each deed, whether they were the deeds of the deceased—that is to say, whether the deceased had any testamentary capacity to execute the deeds; and whether the deceased was weak and facile, and the defender impetrated the deeds by circumvention from him while he was in that state. The jury did not return verdicts in favour of the pursuer on the first and third issues, but they returned verdicts in favour of the pursuer on the second and fourth issues—that is to say, that in their opinion the deceased John Gibson was, at the time when the deeds were executed, weak and facile, and the deeds were obtained from him to his lesion by circumvention by the defender.

On the best consideration which I have been able to give to the evidence in this case, I have reached the conclusion that the jury were justified in coming to the conclusion which they reached. It is unnecessary for us, in fact we are not entitled, to consider whether or not we should have reached the same conclusion as the jury did. It is sufficient that we are satisfied that there was material upon which the jury were entitled to reach the conclusion which they arrived at. There were really two questions of fact they had to consider. The first is: Was there evidence to the effect that the deceased was mentally weak and facile? I think it would have been a very doubtful verdict indeed if the jury had found that the deceased had no testamentary capacity at the time when the deeds were executed. But the jury did not reach that conclusion. They thought that there was evidence that he was weak and facile. I think it not doubtful that, upon the evidence, they were entitled to reach that conclusion. The situation was this: The testator returned from America in 1919. His second wife had died the previous year. At the time when he left America there is a reference to his state in a letter (to which I shall make other reference) written by a friend of the defender to the effect that the deceased would be a charge for anyone, clearly alluding to the circumstance that he did not possess the physical and mental capacity which he had formerly enjoyed. When he arrived in Scotland he came to reside with his son, the pursuer, and continued to reside with him until the date of his death in April 1923, although during that time he made certain periodical visits to the defender. The first insight we have into his state of mind is to be got, I think, from the testimony of certain gentlemen whose evidence I should think was entitled to very great weight. They were responsible in this sense, that they were connected with the bank where he did the little business that he had to do. They state that at first he was sensible enough, but that he greatly deteriorated. The next evidence dealing with his state of mind is the evidence of a doctor, who was in the habit of visiting the pursuer's family and saw the deceased. He admits frankly that he did not at first pay much attention to his state, although he did not seem a very bright or intelligent old man. In 1921, however, he had to visit him in connexion with a cold he had, and he then reached the opinion that the deceased, who at that time was not quite seventy, was suffering from senile decay. That doctor did not see him again, at least professionally, until after the deeds were executed, but he saw him shortly after those deeds were executed. His opinion then was that the man was not capable of expressing himself intelligently upon things, and that he had not got any mental capacity at all to execute deeds. He certified as to the cause of his death, which was cerebral hæmorrhage. That had been brought on by a disease from which the deceased had suffered for a considerable time, namely arterio-sclerosis. The effect of that disease (and the jury were entitled to apply their knowledge of the fact) is progressive; you do not get a man, suffering from that disease improving in his condition at a particular time. There was, in addition, such evidence as Lord Anderson has called attention to, which may be described as general evidence as to his mental state. All that evidence, to my mind, forms a body of testimony upon which I think any reasonable jury were entitled, if they believed the testimony, to reach the conclusion that the deceased was weak and facile.

The second question which the jury determined was that the defender circumvented the deceased and obtained the documents in her favour contrary to what may be said to be his real desire with reference to the disposition of his property. That is probably a more difficult question. If it were an essential in order to establish a case of this sort that the pursuer required to put his finger upon actual instances of fraud, then I think it very doubtful whether the verdict upon this head could stand. As, however, was pointed out by the Lord Justice-Clerk in the case of Clunie, if that were needed, in nineteen out of every twenty cases where deeds were set aside the deeds would have been wrongly set aside. After all, circumvention means the impetration of a will or deed against a person's interest, where that person is not fully capable of taking care of himself or herself. The existence of such acts of impetration must always be a matter of inference; you cannot expect direct proof, because, as a rule, the deeds are impetrated at a time when the only persons present are the person influenced and the person influencing. Where you are dealing with settlements made by those who are dead, the only direct evidence that can be given of what has occurred is the evidence that may be given by the person whose act is challenged. It must necessarily be a matter for the jury, taking all the circumstances into account, and particularly weighing the evidence with reference to the impression made upon their minds by the appearance of the defender in the box, whether or not a case of impetration has been made out to their satisfaction. I do not think we are justified in interfering with them because we think we should have reached a different conclusion. But, upon this matter, while I do not go quite so far as Lord Anderson has gone and say I should necessarily have reached the same conclusion, I certainly am prepared to say this, that I am not satisfied that I should not have done so. I certainly am quite satisfied that there was material upon which the jury were entitled to reach the conclusion they did.

Let me refer only to one or two salient features in the case. What appears to me to be an outstanding circumstance in this case is that the defender was obsessed with the idea that she was entitled to get all the money that her sister had ever had. I do not think she ever knew what she had, and there is no direct evidence that she had even a fraction of what the defender ultimately got by means of the two deeds in her favour. There is also a matter upon which I cannot help thinking the jury might, if they thought fit, draw a conclusion adverse to the fairness with which the defender had acted throughout. I refer to the communication written to her by a Mrs Johnston, to which I have already referred. This is a letter written to the defender before the deceased had left

America, after he had sold his house. The passage I draw particular attention to is this: “You asked about your sister's money. Their money was in both their names, so that any of them could draw it. Of Course, her money went into the house, and many a time she was sorry for it. It is all true what you say; but I fear you will get nothing for he wants it all for George”—that is the pursuer—“and what can you do?” The defender therefore knew when the deceased came to this country that his deliberate intention was to leave all his estate to his son, which one may, I think, say was a perfectly natural thing for him to do. She also knew that the deceased did not intend to give her any money at all. I think it is perhaps unfortunate, although it would, to my mind, have done the defender no good, that one has not been able to see the letter by the defender to which that letter by Mrs Johnston was an answer. In connexion with the preparation of the will there are also certain circumstances which a jury might consider themselves entitled to weigh. I have already mentioned the circumstance that the will was got at a time when the deceased John Gibson was staying with the defender. At that time he was in such a state of feebleness and his memory was so much impaired that, when he went out for a walk, he went out with a card in his pocket with an address which would disclose where he was residing in case he had forgotten where he lived. No one speaks to having seen the will written. The defender is the only person who knows about that. But, of course, a jury are not bound to accept the defender's account as being necessarily an accurate account of what occurred in connexion with the preparation of the will. A nasty feature of this matter is that, before the execution of the will, the defender had asked one of the witnesses to be ready to witness a will that was to be made by the old man in her favour. She got this man and a friend of his to come in, and they both came in and witnessed the signature. Of course, it was an unnecessary formality to witness a holograph will if there had been nothing about the will that was open to suspicion. But there it is. The will takes the form of a request to the pursuer to make payment to the defender of what amounted to much more than the half of all the property that the deceased had in the bank. I agree with Lord Anderson that, although in ordinary circumstances it may be that a person who knows of another's will is under no obligation to disclose that circumstance, the form in which the will is expressed and the defender's knowledge as regards the deceased's previously expressed testamentary desires, as indicated in the passage of the letter I have just read, put upon her an obligation as a matter of fairness to disclose that document to the pursuer during the lifetime of the deceased. That, however, was not done. He only knew of the document after his father was dead. What I should deseribe as the internal evidence in the will appears to me to be against its authenticity. It is said that it is a simple will. “Simple” is an adjective that is applicable to a will according to the mental capacity of the person who is said to make the will. When you contrast the will with a document that was entirely in the handwriting of the deceased and was written about a year previously, I am inclined to agree with what Dr Nairn said, that in the document itself you have, at all events, certain reason for supposing that it was not entirely the act of the deceased. He had written, the year previously, a letter where there were misspellings and great feebleness of handwriting towards the end. In the will itself there are no misspellings, or only a very slight misspelling; certain of the words which are words of considerable size are accurately spelt. In addition to that, you have in the will this statement:—[His Lordship quoted the phrase in the will “bequeathed by her sister”]. There is no evidence in the case that the sister of the defender ever bequeathed a penny to the dead man, and certainly there is nothing to indicate that the deceased sister had £450. Those circumstances appear to me to be sufficient to justify the jury in drawing the conclusion they drew, if they believed them and if they attached that importance to them which they were entitled to attach to them if they thought fit.

A strong point was made by the defender to the effect that, so far as the second deed is concerned—that is to say, the deed by which a gift of £240 was made to the defender in the lifetime of the deceased man—the defender did make a communication, not an altogether accurate communication, to the pursuer as to what had taken place. But it was almost inevitable that she should make that communication, because at the time when the alleged gift was said to have been made the money in bank was lodged in joint name of the pursuer and the deceased. The defender, therefore, must have been perfectly well aware that the pursuer would get to know what had happened and the large amount that had been drawn. It is also true that the pursuer did not challenge that at the time. I think there is evidence that he was upset by it, and the evidence of the gentleman connected with the bank, who knew about the transaction, supports the pursuer to some extent here. If this matter had stood alone I think the case upon circumvention would have been very much weaker indeed. But I think here, too, the jury were justified, if they thought fit, in linking together the two deeds, because they are, to all intents and purposes, parts of what one may describe as the same transaction, or what the jury might take as parts of the same transaction, by which there was to be a transference of the bulk of the money of the deceased to the defender, because in her view, I think an erroneous view, the money had originally belonged to her sister.

On the whole matter I agree with what Lord Anderson has said, that this is not a case where we should, in accordance with the practice that prevails in reviewing verdicts, be justified in interfering with what the jury has done.

Lord Blackburn.—Having presided at the trial I desire in explanation of my charge to say a word as to the view I take of these two issues. So far as they refer to the mental condition of the granter of a deed, the first applies where his mental deterioration is complete and has arrived at idiocy or total incapacity; the second applies where the deterioration has not reached that stage, but amounts only to facility. So far, accordingly, the only difference between the two issues is one of degree, the question being whether the granter's mental condition has or has not crossed the line which separates extreme facility from total incapacity. The other apparent difference between the two issues relates to the obtaining of the deed from the granter. Under the first issue, where the mental condition of the granter amounts to total incapacity, the jury is not required to find that the deed has been obtained by fraud or circumvention. Under the second, where his mental condition falls short of total incapacity, the jury, before answering the issue in the affirmative, must be satisfied that the deed has been obtained by such means. This distinction between the two issues is not, in my opinion, a very real one. It has always been recognised that the amount of evidence required to instruct fraud or circumvention under the second issue varies inversely to the degree of the granter's facility. This must obviously be so, because the greater the facility of the granter the more easy it becomes to defraud and circumvent him—see Munro v. Strain, 1 R., at p. 1047, per Lord Ormidale. Erskine (IV. i. 27) states that “where lesion in the deed and facility in the granter concur, the most slender circumstances of fraud or circumvention are sufficient to set it aside.” It follows that, where the facility of the granter is extreme and his mental condition has approached the border-line between facility and idiocy, the amount of evidence required to instruct fraud or circumvention must reach the minimum. It is only logical that, when the granter's mental condition has crossed the line, no evidence whatever of fraud or circumvention should be required; it is, in my opinion, to be inferred from the mere fact that a deed has been obtained from one who was totally incapable of granting it. The two issues are closely inter-related, although they lead to quite distinct conclusions; and the question which determines whether a verdict should be returned on the one or the other depends upon whether the mental state of the granter has passed beyond the line which separates facility from idiocy or not. That is a question entirely for the jury, and one which they must determine for themselves on the whole facts disclosed by the evidence relative to the granter's mental condition. In considering this question a jury may, if they think fit, attach weight to the opinions of expert witnesses that the facts disclosed instruct that the mental condition of the granter has crossed the line, but they certainly are not bound to do so. That they should attach any importance to such an opinion expressed by a witness who is not a mental expert, and therefore in no better position to judge than themselves, appears to me highly improbable. But the suggestion is now made in this case that, if a witness expresses the opinion that the facts he speaks to instruct total incapacity, therefore the jury are debarred from considering the facts upon which that opinion is based in order to reach the conclusion for themselves that these facts instruct no more than facility. This, to my mind, is a most startling and illogical proposition, and one to which I cannot assent—see Morrison v. MacLean's Trustees, 24 D. 625, per Lord Justice-Clerk Inglis, at p. 631. It was supported by an argument that facility and total incapacity were so entirely different in character that evidence to instruct the one must be of a totally different character from that required to instruct the other. I have already indicated that the difference between them is, in my opinion, merely one of degree. I entirely concur with the opinion of Lord Dundas in Spring v. Martin's Trustees (1910 S. C., at p. 1089), that it would be quite illogical to answer both issues in the affirmative. But nothing in that learned Judge's opinion appears to me to indicate that evidence adduced in support of the one issue was not available to support the other. Indeed, he quotes (at p. 1090) with approval charges by Lord Justice-Clerk Boyle and Lord Robertson laying down exactly the converse.

In endeavouring to distinguish between the two issues counsel for the defender went so far as to suggest that facility was much the same thing as pliancy, and therefore totally different from idiocy. It may be that in colloquial language facility and pliancy are almost interchangeable terms. But in Scots law facility has a special meaning which cannot be confused with mere pliancy. It has been defined as a condition of mental weakness, short of idiocy, in which an individual is easily imposed upon and induced to do deeds to his own prejudice—Bell's Dictionary. In my opinion pliancy falls far shorter of facility in its legal sense than facility itself does of idiocy. In the present case the whole evidence showed that the granter's condition was so near the line between facility and idiocy that, when I charged the jury, I had not formed any decided opinion in my own mind as to whether the line had been crossed or not. I charged them that that was a question for themselves and not for me, and one which they must determine for themselves before they were entitled to return a verdict for the pursuer. I also charged them that, in making up their minds on that question, they were bound to consider the whole facts disclosed in the case, and that those facts as a whole were, in my opinion, sufficient to justify them in coming to the conclusion, if they desired to do so, either that the granter was totally incapable or that he was merely facile. I drew no distinction between evidence available to prove total incapacity and that available to establish facility, and it never entered my mind to do so. But I warned them that, before reaching a conclusion that the granter was totally incapable, they must consider carefully the fact that both the deeds granted were simple in their terms, that admittedly they were holograph of the granter, and that there was no evidence of his having been assisted in their production. I intended them to understand that in my opinion, an opinion which Lord Hunter has also reached, they would be safer to return a verdict on the second issue rather than on the first, and they did so. I also charged them that, if their verdict was to be for the pursuer, it must be on one of the two issues only, and that it would be unnecessary for them to deal with the other. No exception was taken to my charge, but it is now sought to set aside the verdict on the ground that evidence which I told the jury they were entitled to consider as instructing facility was not, in fact, available for that purpose or for any purpose other than to instruct total incapacity. I adhere to the opinion that my charge was right; but, whether it was right or wrong, the ground on which it is now sought to set aside the verdict is an ill-disguised attempt to get behind a charge to which no exception was taken at the time, and which was not even adversely commented on at the hearing on the rule. That alone appears to me to be a sufficient reason for discharging the rule.

But, even if the charge is wrong, I agree with the opinion of Lord Anderson. It is perhaps a little unfortunate that the word “fraud” should always be included in this issue as a mere matter of form. But “fraud or circumvention” has a distinct meaning in our law, and can be established by evidence far short of that required to establish a mere charge of fraud. The meaning of fraud and circumvention was very clearly explained by Lord Kyllachy in a charge to a jury in the case of Parnie v. MacLean . The case is unreported, but the charge was printed and I have had an opportunity of reading it. His Lordship said:—“Fraud and circumvention are really shades of the same thing, but as used in this issue it is assumed to be fraudulent to take advantage of anybody, even by way of pressure or importunity or anything of that kind, who is not in a normal state of mind, and whose will is not normally strong. Things that might be right to do with a strong-minded person become wrong when done for your own benefit towards a person who is, as I have said, facile; and therefore, in law, fraud and circumvention are two shades of the same thing, the meaning of the issue being that you have the question put to you whether, facility existing, there had been either distinct machinations, tricks, importunities, solicitations, even suggestions, towards the testator while the testator's facility was such that she was not in a position to resist—not likely to be in a position to resist. It is not necessary that there should be deceit. It is enough that there should be solicitation, pressure, importunity, even in some cases, suggestion. The degree of circumvention would depend on the degree of facility.” I charged the jury that it would be enough if the defender had “got round” the granter by means which they regarded as dishonest. In my opinion the facts and circumstances proved amply justified the jury in inferring that there had been solicitation, pressure, importunity, and suggestion, or dishonest motives of that kind. I thought the verdict was right, and I concur in thinking that the attack on it fails and that the rule should be discharged.

Lord Justice-Clerk (Alness).—In this action the pursuer, who is the only son and executor-dative of one John Gibson (hereinafter called “the deceased”), seeks to set aside two instruments executed by him in favour of the defender, who is a sister of the deceased's second wife. By the first instrument, which is holograph and testamentary in its character, and which is dated 31st July 1922, the deceased requested the pursuer at his death to pay to the defender £450 sterling. The second instrument, which is also holograph, and which is dated September 1922, bears that the deceased had handed to the defender £240 as a gift “for all her kindness, to do whatever she likes with.” The pursuer tabled four issues for the trial of the cause—two which put the question to the jury whether the instruments in question were not the deeds of the deceased, and two which asked them to say whether on 31st July 1922 and in September 1922 the deceased was weak and facile in mind and easily imposed upon, and whether the defender, taking advantage of his weakness and facility, did, by fraud or circumvention, impetrate the writings from him to the lesion of the deceased. The issues were based upon relevant averments in the pursuer's pleadings with regard to the mental condition of the deceased at the date when the instruments were executed, and with regard to the conduct of the defender. The latter denied these averments. A jury sitting with Lord Blackburn found for the pursuer on the issues of fraud or circumvention, and refrained from finding for the pursuer on the issues of “not the deed.” A rule having been granted on the pursuer to show cause why the verdict should not be set aside, we have now heard parties on the rule, and we are invited to determine whether the verdict shall stand or whether the case falls to be re-tried.

It is, of course, necessary to bear in mind the limitations imposed by custom and by authority upon our duty or right to intervene at this stage of the proceedings. These limitations are familiar, and they have been more than once in recent times reiterated by this Court. We have no right to disturb a verdict merely because we do not agree with it, or because we should ourselves have decided differently. The jury are masters of all questions of credibility, and, within bounds, of all questions of fact as well. But, if the verdict is contrary to the weight of the evidence, and cannot, in any reasonable view, be reconciled with that evidence, or if it is entirely unsupported by evidence, we are, I apprehend, not only entitled but bound to set it aside. Another general observation which I would make is this—that, in the absence of any exception taken by either of the parties to the charge of the learned Judge who tried the cause, we must assume that the law which he expounded to the jury was not only accurate but adequate. The defender cannot, in my opinion, be heard now to urge that in law the Judge's charge was imperfect, or that it omitted to give the jury any legal direction which was necessary for the proper determination of the suit. I do not regard the defender's argument as constituting an attack, covert or open, upon that charge; and nothing which I now propose to say involves the slightest reflection upon it.

I now come to closer quarters with the issues upon which the case went to trial. They are as follows:—[His Lordship quoted the issues].

Now, it is to be observed in limine that the first and third issues are inconsistent with the second and fourth. If I may respectfully adapt the language of Lord Dundas in Spring v. Martin's Trustees, I should say that the mental conditions postulated by the first and third issues and the mental conditions postulated by the second and fourth issues could not co-exist in fact in any human being at one and the same time. The first and third issues assume the absence of a disposing mind. The second and fourth issues assume the presence of a disposing mind, but in a weak and facile condition, of which the defender took advantage to impetrate the deeds by fraud or circumvention. In other words, the type of evidence on which the one set of issues may be affirmed is entirely different from that which would justify the affirmation of the other set. It is not too much to say that the two sets of issues are mutually exclusive the one of the other.

Now, the jury have in effect held that the writings assailed by the pursuer were in truth the deeds of the deceased. In declining to affirm the first and third issues they have avowed that they were unable to say that the deceased did not understand the nature and effect of the instruments which he executed. That is the starting-point of the argument for the defender.

As regards the second and fourth issues, upon which the jury found for the pursuer, the defender maintains, and I think rightly maintains, that the onus lay upon the pursuer of establishing affirmatively two propositions: (1) That the deceased was weak and facile and easily imposed upon; and (2) that the defender, taking advantage of his weakness and facility, impetrated the deeds from him by fraud or circumvention. What, then, is facility? It is something other than weakness of mind. That is clear when one bears in mind that the issue puts the question whether the deceased was weak and facile, and when one also remembers that, as experience teaches, weakness of mind and obstinacy are often combined in the same person. I agree with Mr Aitchison that facility connotes pliability. It means that a person is in such a mental state that he is unable to resist pressure, and that someone else can mould and fashion his conduct as he pleases. I may add that, in my judgment, the failure of the pursuer on the issues of incapacity yields, and indeed suggests, no legitimate inference with regard to the issue of facility. It is vain and illogical to suggest that, although the jury declined to find the deceased incapable, he may nevertheless be assumed to have been facile. Incapacity and facility are two quite separate concepts, and the evidence required to establish the one is quite different in quality from the evidence required to establish the other. If it were otherwise, if the only difference between the issues be one of degree, then I fail to see the necessity for four issues in this case. On that view the second and fourth issues might be affirmed within the ambit of the first and third issues.

Further, there must not only be facility, but there must be fraud or circumvention and impetration. Fraud and circumvention are, I take it, two ways of looking at the same thing. “Circumvention,” says Stair (I. ix. 9), “signifieth the act of fraud, whereby a person is induced to a deed or obligation by deceit.” The affirmation of such an issue postulates dishonesty on the part of a defender. And yet Mr Gentles expressly disclaimed any such suggestion against the defender. The disclaimer, in my judgment, carried with it a virtual surrender of the case which the jury have held proved. Again, impetration, to my mind, involves something other and more than persuasion; it involves coercion. Moreover, it must be made clear, not only that the power to dominate existed, but that, in point of fact, it was exercised. And while, from the nature of the case, these are matters of inference rather than of direct evidence, the inference must be one which the jury were well entitled to draw, particularly when one remembers the heinousness of the charge levelled against the defender. So much for the general considerations which I think we should bear in mind in the determination of the questions submitted to us, and in the interpretation of the issues which the pursuer sets out to establish.

I now come to the facts in the case. So far as undisputed they lie in small compass. The deceased spent most of his life in America and was twice married. The pursuer is the only son of his first marriage. His second wife died in 1918. There were no children of the second marriage. In 1919 the deceased returned to Scotland, and thereafter resided in the house of the pursuer, who had spent most of his life at sea, but who settled down in Greenock in 1920. After his return to Scotland the deceased paid regular visits to the defender, who resided in Edinburgh, and who, as I have said, is the sister of the second wife of the deceased. In particular, the deceased spent three weeks in 1919, eight weeks in 1920, eleven weeks in 1921, and about twelve weeks in 1922 with the defender in her house in Edinburgh. The deceased died in the pursuer's house at Greenock in April 1923. The pursuer's case on record is that the defender obtained from the deceased the writings which are the subject of reduction during his last visit to her in 1922, that at that time and previously he was in such a mental state as to be unable to understand the writings, and did not understand them; or, alternatively, that they were impetrated by the defender from the deceased by fraud or circumvention when he was in a weak and facile state. It may be added that the pursuer was not denuded of all share in the estate of the deceased at his death by the instruments challenged, for he received the proceeds of a policy on the life of the deceased worth £200 or thereby.

Now, obviously, the crucial question in the case is, What was the state of the deceased's mind during the months of July to September 1922 which he spent with the defender, and during which the two instruments assailed by the pursuer were executed? A significant, and indeed startling, feature of the pursuer's case is his failure to adduce a single witness who can speak from observation to the mental condition of the deceased during that critical period. I take leave to doubt whether any former case of this kind has been characterised by so extraordinary an omission.

I have read and re-read the evidence led for the pursuer, and I must own that I can find no warrant for the verdict which the jury returned. Had the jury affirmed the first and third issues instead of the second and fourth, I think it would be difficult, if not impossible, to disturb their verdict. In other words, there is evidence, if the jury accepted it, as they were entitled to do, that the deceased was not of sound disposing mind when he executed the writings in question, and that accordingly they were not his deeds; but there is none which justifies the inference that he was facile, and that the writings were impetrated from him by fraud or circumvention on the part of the defender.

Let me analyse the evidence led for the pursuer. I regard this as a task which is laid upon us, and the discharge of which is essential to the proper performance of our duty. For the purposes of the present controversy I propose to discard entirely the evidence led for the defender, and to confine my attention to the evidence led for the pursuer. Now, that evidence falls into four categories: (1) The evidence of the pursuer and his wife; (2) that of medical men; (3) that of a banker and accountant in Greenock who looked after the finances of the deceased; and (4) that of a certain number of his neighbours and friends.

As regards the evidence of the pursuer, he states that, in July 1922, when the will was executed, the deceased was not, in his opinion, of sound disposing mind, and that, when he handed over £240 to the defender, he was not able to appreciate what he was doing. The pursuer's wife, Mrs Gibson, says that in July 1922 the deceased was unfit to understand business matters at all, and that, in her opinion, he was not fit mentally to make a will or to understand the meaning of a will.

As regards the medical men examined, it must be remembered that the first of these, Dr Nairn, did not see the deceased from October 1921 to November 1922, and that the second, Dr Rutherford, never saw him at all. Dr Nairn's evidence regarding the mental state of the deceased in July and September 1922 depends, therefore, on an inference drawn from his condition in October 1921 and in November 1922. Such an inference, according to Dr Rutherford, would be conjectural, and could not be made with certainty. What was the inference? It was that the deceased was unable to transact business in a correct or reasonable manner at the dates when the deeds under reduction were executed, and that he was incapable of appreciating what he was doing in September 1922. Dr Nairn goes further, and adds that the deceased could not have appreciated the meaning or purpose of the letter which he sent to his banker asking for a statement of his account. Dr Rutherford is an expert, who had no personal knowledge of the deceased, and his view is that it is very unlikely that the deceased could make a will intelligently in July 1922.

The deceased's banker, Mr Thomson, says that he was incapable of writing the letter asking for a statement of his account, as he had not the necessary brain power. Mr Thomson considers that the deceased was not capable of producing the will founded upon by the defender because he was not of sound disposing mind when he saw him before that date; and further, that he could not make a gift of £240 appreciating the meaning of his action or having a rational intention in the matter. “He could not,” says Mr Thomson, “understand what he was doing in disposing of it.” The deceased had practically no mentality left in May 1922, according to this witness. As regards Mr Nicolson, his view—based, be it observed, on one interview of short duration with the deceased—is that he was quite unable to transact business in May 1922, that he was not capable of making the will in question and understanding its effect, and that he could not understand the meaning and effect of the £240 transaction.

To the same effect is the testimony of the remaining witnesses for the pursuer, in so far as their evidence is of any value. Mrs Menzies says nothing which is of the slightest importance. Mrs Gallacher hazards the opinion that the deceased was not mentally right when he came back from America. She thinks that when he went to Edinburgh in 1922 he had not any conscious intelligent mind left. Mrs Galbraith describes the deceased as childish; but it is significant that, when asked by the pursuer's counsel if he would be able to resist the persuasion of anyone who tried to get him to do anything of importance, she “couldn't just exactly say.” James Scollay says that when he first saw the deceased in October 1920 “he was really incapable of thinking,” and that for the two succeeding years, during which he lived in the same house with the deceased, it was impossible for him to do any business. Mrs Tierney's evidence is to the same effect. “I don't think,” she opines, “that he could ever do any business.” Finally, Mr Marshall depones that the deceased was not capable of looking after money rationally, that he was not fit to make a will, and, indeed, he adds that he cannot remember one intelligent remark made by the deceased from 1919 onwards.

Now, much of the evidence which I have recited is highly coloured, and, in my judgment, exaggerated. But the jury were, as I have already indicated, entitled to accept it if they thought fit, and to affirm that the deeds attacked were not the deeds of the deceased. But what I desire to emphasise is that that evidence is entirely out of alignment with the issues which the jury affirmed, and, indeed, has no proper relation to them. The evidence includes no evidence of a facile mind which is worthy of the name, and it includes not a particle of evidence of fraud, circumvention, or impetration. Evidence of solicitations, importunities, and malpractices by the defender, such as is usual in a case of this kind (cf. Morrison, 24 D. at p. 628), is conspicuous by its absence. There are two passages, in the course of the 264 pages over which the evidence led by the pursuer extends, of the type which I desiderate on the subject of facility, and they stand quite alone. Mrs Gibson says, in answer to a leading question put by the pursuer's counsel, that the deceased was easily influenced by any person he knew; and the pursuer expresses a similar idea—in cross-examination, as it so happens—passages which were not read to us by either counsel who addressed us. But I am clearly of opinion that these passages in themselves afford a quite insufficient basis for the establishment of a case of facility, and that they are completely submerged by the weight of evidence regarding the incapacity of the deceased. Moreover, there are other passages in the evidence led for the pursuer to the effect that the deceased, so far from being facile, was obstinate, and insisted in getting his own way. He would not go to the doctor; he would not let the pursuer interfere in his banking transactions; and he declined to go to Shetland when a proposal to that effect was made to him. In any event, as I have said, there is not a tittle of evidence on which the jury were entitled to hold, or from which they could legitimately infer, that fraud, circumvention, or impetration had been practised by the defender on the deceased. The pursuer's pleadings, like the evidence led for him, are saturated with the idea of the incapacity of the deceased. The ideas of a facile mind and illicit pressure brought to bear upon it are destitute of support in the evidence led.

Let me for a moment advert to the documents under reduction. Both are simple and both are holograph. The case is therefore different from the case which would be raised were one dealing with long and complicated deeds containing a variety of provisions. Take the writing of September, which bears that an inter vivos gift had been made to the defender. What are the circumstances which surround its execution? They are that the deceased wrote to his banker in Greenock for the sum of £240; that his money was then on deposit-receipt in name of the pursuer and himself; that the pursuer was a party, by endorsing the deposit-receipt, to sending the money to the deceased in Edinburgh; and that, on the day the money was received, the defender wrote to the pursuer a letter which, as he understood it, informed him of the gift which had been made to her. Has a case ever been suggested before in which the person who is challenging a gift was himself a party to forwarding the money requisite to make the gift; in which the person to whom the gift was made at the time informed the person who had an interest to challenge the gift that it had been made; in which, that information having been sent, no protest, verbal or in writing, followed; and in which action was delayed till after the death of the granter of the gift? The circumstances seem to me to come perilously near erecting a plea of bar against the pursuer's claim. They seem, in any event, to blow into the air the theory that we are here dealing with a conspirator who had dark designs upon the fortune of an infirm and silly old man. It is, to say the least, unusual for a conspirator to broadcast the success of his conspiracy. In truth, the defender's conduct at the time will not square with the theory on which the pursuer's case is built; the pursuer's conduct at the time will not square with the attitude which he now seeks to adopt. The mere fact that the pursuer necessarily became aware of the transmission of £240 to the deceased in Edinburgh by no means suggested its subsequent retransmission to the defender, and goes no distance at all to account for the letter which the defender wrote to the pursuer. That letter seems to me to be consistent only with the honesty which Mr Gentles attributed to the defender, and wholly inconsistent with the sinister plot which is now ascribed to her.

It was said that the defender conceived that she was entitled to a share in her sister's money—was, in fact, obsessed by that idea. I doubt if there is any evidence to warrant that view; but, even assuming it to be correct, it is a very big jump to assume therefore that she would resort to a peculiarly mean and daring form of fraud in order to secure a part of that money. Moreover, the wording of the deed of gift seems to me entirely consistent with the language which the deceased, looking back on his visits to the defender, might reasonably select, but inconsistent with that which the defender would, if minded to cheat her benefactor, have been likely to employ.

As regards the will, I am disposed to think that its terms do not accord with the theory of the pursuer's case. Why, if the relationship between parties was such as the pursuer suggests, should she have proposed to him such a precatory form of bequest? A more unlikely contrivance I cannot imagine. As regards the execution of the will, there is not a scrap of evidence to support or justify the idea that its terms were dictated by the defender, or that a copy was made out by her. I do not recollect that such a suggestion was made in cross-examination of the defender. As regards the witnesses to the will, I am quite unable to see that any inference unfavourable to the defender can be drawn from the fact that she informed one of them beforehand that his services would be required as a witness to a will in her favour. For myself, I should have thought that the frank publicity which she gave to the topic was much more consistent with innocence than with guilt.

It is said that the defender did not tell the pursuer of the will till the death of the deceased. That is true. But, as Mr Aitchison asked, why should she? I see no reason for a variant in the form of that question. I cannot see that there was any obligation upon the defender to inform the pursuer of the execution of the will, or that her omission to do so yields any inference unfavourable to her case. At the worst, she may not have desired the pursuer to know of the deed. It seems to me a violent non sequitur that she must therefore be assumed to have obtained the will by fraud. I will only add that nothing which I have said infringes upon the familiar principles referred to by Lord Shaw in the case of Clarke. I am not proposing to review the conclusions formed by the learned Judge who tried the case, and for whose opinion, needless to say, I entertain the highest respect, regarding the credibility of the witnesses examined. It will be observed that I have, in point of fact, abstained from quoting a line of the evidence led for the defence, and that I have refrained from balancing the testimony of one witness against the other. But I do say that, on the evidence led for the pursuer, which I accept, there is no warrant for the verdict returned. The jury have affirmed the wrong issues, and therefore the verdict ought not to stand.

The pursuer's case, in my judgment, is unsupported by any sufficient evidence of facility, and contains not a scrap of evidence of fraud, circumvention, or impetration, or of any facts or circumstances from which the employment of such malpractices can legitimately be deduced. At the best for the pursuer, the case he makes against the defender is one which is based on suspicion alone. That, in my opinion, will not do. While, therefore, having regard to the opinions which your Lordships have expressed, the conclusion which I have reached must be erroneous, I have formed it so clearly that I feel constrained in all humility to express it. That conclusion is that the verdict cannot stand, and that the rule should be made absolute.