Scottish Court of Session Decisions

George Turnbull M'Kechnie, youngest lawful son of the deceased John M'Kechnie, raised an action of reduction of his father's trust-disposition and settlement dated 11th January 1904, and a codicil thereto dated 16th September 1904. The defenders were Miss Jemima White (otherwise known as Mrs M'Kechnie) and others, the trustees acting under the said settlement, and the said Miss White as an individual.

The pursuer pleaded—“(1) The said trust-disposition and settlement and the codicil thereto not being the deeds of the testator, decree of reduction should be pronounced. (2) Or otherwise, the pursuer is entitled to reduction as concluded for, in respect that at the time of executing the said trust-disposition and settlement and the said codicil thereto the said John M'Kechnie was weak and facile in mind and easily

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imposed upon, and that the defender Jemima White, taking advantage of his said weakness and facility, obtained the said deeds from the said John M'Kechnie by fraud and circumvention, to the lesion of the pursuer. (3) Or otherwise, the pursuer is entitled to reduction as concluded for in respect that the said trust-disposition and settlement and the said codicil thereto were procured from the said John M'Kechnie by the defender Jemima White by undue influence, to the lesion of the pursuer.” [At the conclusion of the proof the pursuer, however, stated that he did not maintain that his father was of unsound mind at the date of the deeds.]

John M'Kechnie, the testator, was born in 1848 and died on 16th October 1905. In 1873 he married Elizabeth Turnbull, from whom he separated in 1884 under a contract of separation, and who became an inmate of an asylum in 1895 and was still alive and in an asylum at the date of this case. Four children were born of the marriage—John, Jane (subsequently Mrs M'Lelland), David (who predeceased his father), and George, the pursuer. In 1896 the testator took up house with the defender Miss White, and they resided together thereafter as man and wife at Westminster Terrace in Glasgow and afterwards at Shawfield in Pollokshields and elsewhere. One son, C. J. D. M'Kechnie, was born to them on 10th January 1897.

In 1881 the testator had entered into partnership with a Mr Wight in a ladies' dressmaking and drapery business, and in 1882 Miss White had entered M'Kechnie & Wight's employment as a dressmaker. M'Kechnie & Wight dissolved partnership in 1888, and the testator opened a shop in Princes Street, Edinburgh, and Miss White subsequently applied for and obtained the situation of manageress of that shop, the subsequent prosperity of which was apparently due to her, and there was evidence that the testator was strongly of that opinion. Subsequently the testator acquired other shops in Edinburgh and Glasgow. In 1898 the son John came at the testator's request from a situation in Birmingham and was introduced in the Princes Street shop as a future partner, but two days later he was told by his father that he, the father, had understood Miss White was not coming back to manage the business, that he had made a mistake and that she was coming back. The testator offered him, however, a position in the business equal to hers, which John declined. John, however, was in 1902 given the management of a shop in Glasgow, and in 1903 the business of one shop in Glasgow was handed over to him. In 1898 Alexander M'Kechnie, the testator's brother, and in 1902 the son George, the pursuer, entered the testator's employment, but in April 1904 the latter left after a disagreement with his father though they continued regularly to correspond.

On 6th March 1903 the testator, who was then possessed of property of over £12,000 in value, executed a trust-disposition and settlement, the effect of which, roughly speaking, was to divide his estate between his legitimate family on the one hand and Miss White and her son on the other, Miss White receiving legacies of £1500 and £2000 (the latter, however, subject to a liferent to the brother Alexander), her son receiving a legacy of £2450.

On 28th November 1903 the testator, who in May had had a serious illness, the effect of which is dealt with in the Lord Ordinary's note ( infra), after previously in that year getting a written statement from his lawyer as to the legal rights of his children, made over to Miss White by letter the whole of his furniture, in value about £700; and on 11th January 1904 he executed the trust-disposition and settlement under reduction. On 3rd August of the same year the testator executed a contract of copartnery with Miss White, giving her over as a free gift the half of the capital in the businesses as from 1st March 1904, the value of this gift being about £2000. On 16th September the codicil under reduction was executed under the circumstances set forth in the Lord Ordinary's note ( infra). The effect of this codicil was to revoke a bequest to the brother Alexander of the fee of a certain property, in value about £420. By the gift of furniture, the taking into partnership of Miss White, and by a transference of £1000 from the credit of the testator to that of Miss White, (though it did not clearly appear whether this was a gift or the repayment of a loan), the testator's estate was reduced from about £12,100 to about £8400. Of this the illegitimate son was, by the disposition under reduction, given properties amounting to over £6200 in value, Miss White receiving liferents of two of these properties amounting to about £90 a-year, while the widow and legitimate family only received between them about £1000, the remainder going to pay estate duties, &c., and a legacy of £650 to a sister of the testator.

In October 1904, a few days before his death, the testator had dictated to Miss Peter, his cashier, detailed jottings for a new settlement, but he died before this was executed. Roughly speaking, the effect of the alterations would have been (1) to make Miss White fiar of the properties which under the 1904 disposition were to go to her son, while he was merely to have liferents of certain of them, in value about £320 a-year, and (2) to make a gift to Alexander of the fee of certain property about equal in value to the former bequest to him cancelled by the codicil as mentioned above.

On 2nd February 1907 the Lord Ordinary ( Ardwall) pronounced this interlocutor—“Reduces, decerns, and declares in terms of the conclusions of the summons for reduction in so far as regards the pretended codicil to the trust-disposition and settlement of John M'Kechnie, warehouseman, No. 99 Princes Street, Edinburgh, now deceased, and bearing date 16th September 1904: Quoad ultra assoilzies the defenders from the conclusions of the summons, and decerns: Finds the defender Jemima

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White liable to the pursuer in one-half of his expenses of process,” &c.

Opinion.—[ After narrating the facts in the case his Lordship proceeded.]—“The next point to be considered is the state of Mr M'Kechnie's health after his illness in May 1903 … [ His Lordship here dealt with the details of the illness.] … It is, I think, pretty clear that after his illness there was a great apparent loss of physical energy on the part of Mr M'Kechnie, partly due, no doubt, to the change wrought in him by his illness, but still more due to the fact that having been seriously alarmed as to the state of his heart, he took much greater care of himself, and this was, of course, accentuated by the defect in his eyesight, which seems to have troubled him more or less for a considerable time. His weakened physical condition undoubtedly would affect his disposition more or less, and might make him more amenable to pressure on the part of others, and especially of Miss White, who was constantly with him, and whose presence and assistance were invaluable to him in his impaired state of strength.

“As to his mental capacity, I do not think it has been proved that that was impaired in the sense that he was less capable of understanding business of any kind, although it is possible that he may have been unable to seize ideas as rapidly as he had done before, or to carry them out as promptly and energetically. But the evidence … I think proves that he was perfectly intelligent and able to attend to business matters to the end of his life. But the strongest evidence upon this I consider to be the evidence of Miss Peter, which is completely borne out by the documents, and which shows how capable he was up to within a few days of his death of making a settlement of his affairs, to meet certain main ideas which he had himself jotted down in his own hand, and wished to carry out. The conclusion I arrive at, therefore, as to his mental condition is that possibly owing to failing bodily strength and the condition of his heart he may have been less able to resist any pressure brought to bear on him by others than he was before his illness, yet I cannot say that it is proved that generally he was weak and facile in mind, although it is possible that he might be more or less facile in the hands of a person who had very strong influence over him.

This leads me to the consideration of the question as to alleged undue influence of Miss White over the testator.

Miss White, as the whole of her history in this case shows, is an exceedingly capable, clever, and managing woman, and I have little doubt that Mr M'Kechnie spoke the truth when he said, as he repeatedly did, that he owed his success in business very much to her. His business was one in which a great many young women were employed, both in the dressmaking department and in the shop, and the principal customers were ladies. In a business of that kind, accordingly, it was all-important to have a capable managing lady both to look after the employees and to interview customers. Miss White was, owing to her ability, experience, and tact, in a position of commanding influence in relation to Mr M'Kechnie as regarded his business. But besides that, she was really in the position not merely of a mistress but of a wife, and possessed the influence attached to both these positions, because while she managed his household, looked after himself, and was his companion at bed and board, just as a wife would have been, she was, as being only his mistress, in the position of being able to leave him whenever she liked, being under no legal obligation whatever to remain with him longer than she chose. I think that she only spoke the truth when she signified to two or three of the employees who speak to the matter that she could twirl Mr M'Kechnie round her little finger, and from various things that she is reported, I think truly, to have said at different times, it is apparent that she was quite conscious of the influence she had with Mr M'Kechnie, either to prevent him doing what she did not want done or to do what she did want. I attach no importance to her denials of what these witnesses say, for while she struck me as a very clever witness, I observed that when a crucial question was put to her she several times either pretended that she did not hear it or did not understand it, while she was thinking hard all the time what answer it would be best for her case to give. In short, she conveyed to my mind the impression that she was a very clever witness but not a very reliable one.

But however strong an influence one person may possess over another, especially when holding such close personal relationship as Miss White did to Mr M'Kechnie, that will not suffice to reduce a will unless it is proved that that influence was exercised unduly in order to impetrate the will from the testator, or, failing such evidence of connection between the person possessed of such influence and the preparation or execution of the deed complained of, it would require to be shown that the will was so outrageously against the presumed intentions or clear moral duty of the testator as to make it incredible to suppose that it could have been executed except under the pressure of undue influence on the part of those who were taking the principal interest under it. Now there is not a particle of evidence to show that Miss White had anything whatever to do with the giving of the instructions for the preparation of the deed under reduction or the execution of it. The will under reduction was prepared by Mr Geddes, solicitor, Edinburgh, who is a witness in the case. It seems the will under reduction began first to be discussed about the beginning of August 1903, when the testator told Mr Geddes that he was proposing making codicils to his will, and gave him directions. Mr Geddes advised him that a new will should be drafted, as the codicils would not fit in very well. Mr Geddes seems to have thought throughout that Mr M'Kechnie was giving too much to Miss White and

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her child, and warned him that there might be trouble about it; but Mr M'Kechnie, who seems to have had a strong will of his own, determined to have his own way, and gave Mr Geddes the reasons for his settlement. The jottings he left with Mr Geddes were in his own handwriting, and he instructed him perfectly intelligently, and told him to send him a statement in black and white setting forth the legal rights of his widow and children, which Mr Geddes did. The draft accordingly was made out as he had instructed, and he was so anxious that it should be his settlement that when it was brought back for engrossment he had the draft executed as a will, so that it would serve as a will till the engrossment was made out and duly signed. All this was done in Edinburgh, and outwith the presence of Miss White. The draft bears out what Mr Geddes says, to the effect that Mr M'Kechnie thoroughly understood the terms both of the draft and of the will, and I have no doubt he did. It was signed at Edinburgh on 11th January 1904, before Miss Peter and a dressmaker in the shop. Mr Geddes says that Miss White had nothing whatever to do with any of the deceased's testamentary writings, and certainly it is not proved that she had.

It is always of importance in a case of this sort to consider the terms of the deed itself, and if, as I have already said, the terms of such deed are in conflict either with the known or presumed intentions of the testator, or are so entirely contrary to ordinary moral obligations as to make it incredible that it should have been executed by him voluntarily, that may have the effect of opening the door for the plea of undue influence.

[ After examining in detail the provisions of the will of 1904 and its effect as compared with earlier wills the Lord Ordinary proceeded]—“On the whole I cannot say that the will is either an irrational or absurd one, or one the terms of which, looking to the history of the family, was not consistent with what may be presumed to have been the wishes and intentions of the testator; nor is it a will which ignores his obligations to his lawful wife and family, and even his collateral relations. I need hardly say that, granting all this, I consider that it was, when taken along with the contract of copartnery and other deeds, a most unfair disposition of his property as regarded his lawful children.

While, therefore, I think there is no evidence to justify me in reducing the will on the ground that it was impetrated by undue influence on the part of Miss White, I think the matter is different with regard to the codicil under reduction. That codicil deprives Alexander M'Kechnie, the testator's brother, of the fee of the property 13 Annandale Street, and gives it to C. J. M'Kechnie. I regard this codicil as being directly the work of Jemima White and her alone. The incident out of which the matter arose was a sufficiently absurd one. Miss White, on her way to Edinburgh one morning, had requested Alexander M'Kechnie to get a cap for her boy, and to send it by the porter to the Pollokshields train along with other parcels in the afternoon. In the bustle of business Alexander M'Kechnie forgot this commission till the porter had started with the parcels for the train. On recollecting this he rushed out and bought a cap, and sent one of the shop girls down to the train with it, telling her to give it to Miss White. I must here notice that Miss White was known by that name in all the shops, but at Westminster Terrace and at Shawfield she was known as Mrs M'Kechnie, and was visited by a number of people, including the Free Church minister and his wife, who supposed her to be Mr M'Kechnie's wife. When the girl got to the station Mr M'Kechnie and Miss White were seated in a carriage for Pollokshields, and in the same carriage was a gentleman from Pollokshields who lived right opposite them, and who had known and visited them as Mr and Mrs M'Kechnie. The girl, when she saw them, rushed forward with the parcel, and said loudly, ‘Here's a parcel for Miss White,’ to whom accordingly it was handed. Mr M'Kechnie and Miss White, but I expect especially the latter, were much disconcerted, it is said, by this occurence. Miss White says that Mr M'Kechnie was very angry at Alexander, and on getting home resolved to dismiss him from the shop, and sent her in to tell him so; that she, after getting her tea, went back to Glasgow to the shop and did not dismiss Alexander from the shop as she had been told to do, but talked a lot to him and told him how angry his brother was. Alexander says about Miss White when she came into the shop—‘She told me that I had a lot of consideration for her and she would have as much consideration for me, and would pay me back and make me suffer for it.’ Miss White denies this, but I believe Alexander M'Kechnie, who appeared to me to be an exceptionally candid and honest witness, and I do not believe Miss White's denial, and I further believe that it was entirely due to her influence that Mr M'Kechnie on the 16th September 1904 made the codicil he did. I do not believe Miss White's story. I have the gravest doubts whether Mr M'Kechnie told her to dismiss Alexander, but if he did I think that, with her usual acuteness in business matters, she thought Alexander was very useful where he was in the Argyle Street shop, and where, I may observe, he still remains under Miss White's management, and that she thought a better way of punishing him would be to get him taken out of the will and her own son substituted. I do not think Mr M'Kechnie would have done this himself. It was much more like a woman's trick, and not what Mr M'Kechnie would have done of his own free will when he heard how innocent his brother Alexander had been in the matter, which was a pure accident so far as he was concerned. I am confirmed in this view by the fact that in the jottings which represent Mr M'Kechnie's last intentions he again makes a bequest to Alexander, though not of the same nature as formerly. It is also

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noticeable that Miss White knew what had been done by Mr M'Kechnie, for she told Alexander the moment he went out to the house after Mr M'Kechnie's death that he had been cut out of the codicil in consequence of the incident above referred to. On the facts, therefore, I am of opinion that Miss White, being very much enraged with Alexander M'Kechnie, though with no good reason, exercised the strong influence she had with Mr M'Kechnie in order to carry out her threat to pay Alexander back and ‘make him suffer for it.’ We have here the position which is familiar in criminal law of an evil threatened and an evil per-petrated, the person who made the threat having it in her power to accomplish the perpetration by the hand of another person. I am of opinion that in such circumstances a judge or jury is entitled to infer that the person who made the threat was the person who truly carried it out.

I accordingly propose to grant decree of reduction of the codicil, on the ground that it was impetrated by undue influence on the part of Miss White, Mr M'Kechnie being at the time facile in mind in relation to her, in consequence of the commanding influence she had obtained over him and his entire dependence upon her.

With regard to expenses, the pursuer has been successful in reducing the codicil, and although that is merely part of the directions as to the succession of the deceased, yet it could not have been obtained without evidence bearing on the whole history of the deceased and his relations to Miss White. Accordingly, I think the pursuer is entitled to some expenses, but as he has failed in reducing the deceased's will I think these may be modified to the extent of one-half. The trustees will be entitled to take out of the trust estate the amounts strictly expended by them in defending the will, but they must not take out of the trust estate any part of Miss White's expenses, which she herself must meet out of the very ample provisions she has secured out of the deceased's estate.”

The defenders reclaimed, and argued—(1) There was no evidence of either facility or circumvention. The Lord Ordinary had erred in reducing the codicil. There was no ground for setting it aside any more than the will. (2) In any case, standing the will, the pursuer would take no benefit from the reduction of the codicil, and accordingly had no interest or title to reduce it— Swanson v. Manson, 1907, S.C. 426, 44 S.L.R. 312; Gilchrist v. Morrison, February 28, 1891, 18 R. 599, 28 S.L.R. 441; Duncan v. Duncan, December 14, 1892, 20 R. 200, 30 S.L.R. 167. (3) Undue influence only formed a ground of reduction of a will when the person alleged to have unduly influenced the testator occupied some such fiduciary relation towards him as that of agent to client— Harris v. Robertson, February 16, 1864, 2 Macph. 664; Weir v. Grace, December 13, 1898, 1 F. 253, 36 S.L.R. 200—or possibly as that of priest to penitent or medical man to patient— Munro v. Strain, February 14, 1874, 1 R. 522, 11 S.L.R. 254—but not apparently where the relation ship was that of nurse to patient— M'Callum v. Graham, May 30, 1894, 21 R. 824, 31 S.L.R. 690—and certainly not where, as here, it was that of mistress to paramour— Hargreave v. Everard, 1856, 6 Ir. Ch. Rep. 278. To reduce a deed, whether unilateral or bilateral, there must be some element of deceit or absence of confidence—Bell's Prin., 14 B—and the principles expressed in Gray v. Binny ( cit. infra), relied on by the pursuer, had not been extended to unilateral deeds.

Argued for the pursuer—(1) There was no plea to title to sue. Moreover, if necessary, Alexander would be tendered as pursuer. (2) It was not necessary to show general facility. Facility was made out if it were shown that the testator could not resist the persuasion of Miss White— Clunie v. Stirling, March 11, 1854, 17 D. 15; Munro v. Strain ( cit. sup.) (3) Reduction on the ground of undue influence did not depend on any set relationship; it was sufficient if the relationship gave rise to trust and confidence on the one side and influence on the other, and if the influence so obtained were betrayed by undue or excessive exercise— Gray v. Binny, December 5, 1879, 7 R. 332, 17 S.L.R. 210; Harris v. Robertson ( cit. sup.); Fearn v. Cowpar, March 14, 1899, 1 F. 751, 36 S.L.R. 593; Morley v. Loughran [1893], 1 Ch. 736.