Scottish Court of Session Decisions

On 3rd June 1907 Charles Merrilees, dentist, Dublin, raised an action against ( first) the trustees acting under an alleged trust-disposition and settlement of the late Mrs A. G. Merrilees or Leckie, 4 James Street, Portobello; and ( second) Mrs M. Beaton, wife of Duncan Beaton, 116 Stratford Street, Glasgow, and the said Duncan Beaton as her administrator-in-law and as an individual, and others, the beneficiaries thereunder, in which he sought reduction of the said deed. The trustees alone compeared.

The cause was tried before Lord M'Laren and a jury on 7th January 1908 and following days upon these issues—“(1) Whether the pretended trust disposition and settlement dated 27th February 1907 … is not the deed of Mrs Annie Gordon Merrilees or Leckie, who resided at 4 James Street, Portobello? (2) Whether on or about 27th February 1907 the said Mrs Annie Gordon Merrilees or Leckie was weak and facile in mind and easily imposed upon; and whether the defenders Duncan Beaton, and Mrs Magdaline M'Laren M'Cann or Beaton, or one or other or both of them, taking advantage of her said weakness and facility, did, by fraud and circumvention, obtain from her the trust-disposition and settlement dated 27th February 1907 … to the lesion of the said Mrs Annie Gordon Merrilees or Leckie?”

The jury returned a unanimous verdict for the defenders on the first issue, and, by a majority of nine to three, a verdict for the pursuer upon the second. The defenders moved for a rule, but on 8th February the Court refused the motion, intimating that while the circumstances proved did not amount to fraudulent impetration, there was evidence of facility, of which advantage had been taken by the Beatons.

The pursuer now moved the Court to apply the verdict and to find him entitled to expenses against both the trustees and the trust estate. The defenders (the trustees) thereupon moved for expenses out of the trust estate. The pursuer opposed this.

The facts of the case were these—The testatrix was in her seventieth year when she died on 17th April 1907. She was a widow. The pursuer was one of her brothers, and Mrs Beaton a niece. By the alleged settlement, which was dated 27th February 1907, Mrs Beaton got the liferent of the residue of the estate, and her children, whom failing her husband, the fee. The estate amounted to £5000, and a legacy of £150 was left to pursuer, and another of £250 to another brother. The trustees were Mr R., the solicitor who had made the settlement, and Dr R., a doctor who had been called in by him to see the testatrix, another trustee having refused to act. The compearing defenders maintained that their bona fides and professional capacity were involved. So far as the record was concerned that contention was based upon the following averments by the pursuer:—“(Cond. 7) The trust-disposition and settlement now sought to be reduced bears to have been executed on 27th February 1907. It was prepared by the defender Mr J. R., who prior to that date was a total stranger to Mrs Leckie. Mr R. is the solicitor of the defender Duncan Beaton, who it is believed and averred brought Mr R. to Mrs Leckie's house for the purpose of having the said settlement executed in his and his family's favour. The defender Dr R. was also unknown to Mrs Leckie prior to the execution of the settlement, and was brought to witness it by Mr R. … (Cond. 8) … The pursuer, who was Mrs Leckie's sole acting next-of-kin in this country, … received intimation early in March from Mr G. A. S., solicitor, Aberdeen, who had acted as Mrs Leckie's solicitor prior to 27th February 1907, that he had been presented with a mandate bearing Mrs Leckie's signature demanding delivery of her papers in his hands to be made to the defender Mr R. … Mr S. having good reason to suspect Mrs Leckie's capacity to grant a mandate or any similar deed, was doubtful whether he was justified in delivering up his client's papers, but Mr R. instructed an action to be raised against Mr S. at once, failing immediate delivery to him of Mrs Leckie's papers, &c. Mr S. thereupon, with reluctance, complied with the demand, and handed over to Mr R.'s Aberdeen agents all the papers in his hands conform to inventory herewith produced. … It is believed and averred that a similar mandate was also obtained from Mrs Leckie addressed to her banker, instructing him to hand over to the said Mr J. R. all papers, &c., in his hands belonging to Mrs Leckie. On hearing of the state of matters from Mr S. the pursuer hastened to Edinburgh, where he arrived on 19th March to find Mrs Leckie gone and her house shut up. He then called on the defender Mr J. R. to ascertain where Mrs Leckie had been removed to, but was unable to find him. He, however, saw Mr R. on 23rd March, but Mr R. refused to disclose where Mrs Leckie was. … (Cond. 12) The said pretended trust-disposition and settlement is not the deed of the said Mrs Leckie. … In point of fact she did not give instructions for the preparation

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of the said deed, but was induced by the Beatons to sign it, being unable to resist the pressure which they exercised to get her to sign the deed, especially when a lawyer and doctor, who were both strangers to her, were brought with the deed…”

The pursuer's evidence showed that for many months prior to the execution of the will Mrs Leckie's mental faculties were deteriorating, and that the deterioration was gradual and progressive. A day or two before the will was executed she was unable to recognise intimate friends, and she died on 17th April 1907 from a disease in the brain which indicated that for a considerable time prior to death the brain had been deprived of a sufficient supply of blood, and that she would be rendered liable to be unduly affected by and to be unable to resist suggestions made to her. The pursuer led no direct evidence as to the circumstances relating to the instructions for and execution of the deed. The defenders' evidence was to the effect that Mr Beaton, after unsuccessfully trying to see two other law agents recommended by a friend, called on Mr R., who was also out, but with whose clerk he made an appointment for the next day. Mr R. was then informed that his services were required to make a will for his (Beaton's) wife's aunt. The interview was a very short one, but Mr R., upon being informed that Mrs Leckie was an elderly lady of sixty-five years of age, and in bed with a cold, requested that her doctor be in attendance to satisfy him as to her capacity. Being told that her late medical attendant was dead and that she had required no other since, Mr R. intimated that he would bring a doctor to examine Mrs Leckie. He engaged Dr R., a medical gentleman whom he knew, and who resided near his office. Accompanied by his clerk, Mr R. with Dr R. attended at Mrs Leckie's house next day, when she gave instructions for her will, which was at once, during the visit, drafted by Mr R., extended by his clerk in another room, and finally executed by Mrs Leckie. While Mrs Leckie was giving instructions for the will Mrs Beaton was present and actively intervened to remind Mrs Leckie of promises to remember her (Mrs Beaton) in the disposal of her estate. The provision in favour of Mr Beaton was entirely suggested to Mrs Leckie by Mr R., the solicitor. Both Mr R. and Dr R. were satisfied that Mrs Leckie thoroughly understood what she was doing, and Dr R., in addition to hearing all that passed, made a medical examination of her physical condition and engaged her in further conversation. Mrs Leckie was at a loss to think of trustees, and after some discussion Mr R. and Dr R. agreed to act along with another trustee nominated originally by herself. Mr R., the solicitor, was cross-examined as to the circumstances relating to the instructions for and execution of the will, and in his speech to the jury the pursuer's counsel commented on these circumstances, and especially on the hurried nature of the preparation and execution of the deed, and the fact that Mr R. had had some previous professional dealing with Mr Beaton.

After the verdict was returned, Lord M'Laren, the presiding Judge, intimated that the verdict involved no reflection upon Mr R., “who seemed to have acted quite fairly in a very difficult case.”

Argued for the pursuer—The trustees were not entitled to their expenses out of the trust estate. No imputation was made against them, and that being so they ought, if they meant to defend the action, to have obtained from the Beatons, who had the real interest to maintain the will, a guarantee for their expenses so that they might be kept indemnis. Not having done so they were not entitled to expenses out of the trust estate. In any event, they were not entitled to expenses as between agent and client. As to the circumstances in which trustees who had unsuccessfully defended an action of reduction would be allowed expenses out of the trust estate reference was made to the following authorities:—M'Laren on Wills, section 2323; Graham v. Marshall, November 22, 1860, 23 D. 41: Munro v. Strain, June 18, 1874, 1 R. 1039, 11 S.L.R. 583; Watson v. Watson's Trustees, January 20, 1875, 2 R. 344, 12 S.L.R. 266; Ross v. Ross's Trustees, May 25, 1898, 25 R. 897, 35 S.L.R. 699; Crichton v. Henderson's Trustees, October 26, 1898, 1 F. 24, 36 S.L.R. 22.

Argued for the trustees—The cases cited by the pursuer showed that there was no absolute rule as to whether trustees who had unsuccessfully defended an action of reduction would be allowed expenses out of the trust estate. The matter lay entirely in the discretion of the Court. The evidence showed that the case was a fair one to try, and the trustees had acted reasonably and in good faith in defending the action. They ought therefore to be allowed their expenses out of the trust estate. The only scale applicable to such expenses was that of agent and client.