Scottish Court of Session Decisions

The late Miss Janet Grant Suttie, daughter of the late Sir James Grant Suttie of Prestongrange and Balgone, Bart., died on 7th January, 1836. She left various writings of a testamentary nature, and, among others, a holograph writing commencing with these words:—“I leave and bequeath to James Hamilton, my cousin, the sum of £1000, and to Dr A. M. Ross, who has long been my kind and attentive friend, this mark of my gratitude, £1300, also my writing-case of Russia leather, and all that is in it” The writing then expressed the warmest gratitude to Dr Ross for his services and friendship, and afterwards, with expressions of strong attachment, bequeathed certain furniture, plate, china, linen, and books, to Mrs Hamilton and Mrs Ross, the spouses of the first-named legatees. The writing concluded with this sentence:—“And I write this with my own hand, in testimony of all that this paper and the said inventory contains, at Edinburgh, this 30th day of October, 1835.

Janet Grant Suttie.”

Miss Grant Suttie had an only brother, George Grant Suttie, who, on the death of Sir James in May, 1336, succeeded to large estates. He was married, and had a family, at the date of his sister's death. Nothing was left to him or his family, except the bequest of certain articles of personal ornament. Sir George, as next of kin of his sister, raised a reduction of the testamentary writings, as having been obtained by fraud and circumvention on the part of Dr Ross and Mrs Ross, to the lesion of Miss Grant Suttie, at a time when she was in a state of bodily and mental weakness and facility, which exposed her to their undue influence. Miss Grant Suttie had laboured under disease for a very considerable period before her death, and Dr Ross attended her professionally. Mrs Ross had also been much with her in her last illness. Sir George alleged that Mrs Ross endeavoured to excite Miss Grant Suttie to a state of hallucination on religious subjects, and thereby acquired undue influence over her, and that Dr Ross took advantage of the opportunities of intercourse enjoyed by him as her professional adviser for attaining the same end.

The defenders met the whole of the injurious allegations of the pursuer with an unqualified denial. They renounced all claim under any writing, except the holograph writing already mentioned.

In making up a record, Sir George averred that Dr Ross advised Miss Grant Suttie to come from the country to Edinburgh, on 2d July, 1835, for the benefit of his constant professional attendance:—“That, during the period from the said 2d July, 1835, to 7th January, 1836, when Miss Janet Grant Suttie died, she was labouring under a severe and incurable disease of a very overpowering and oppressive nature to the mind of a female, and from which the defender Dr Ross well knew that she could not recover. She was receiving daily, during the said period, by the orders of Dr Ross, opiates or palliatives for the said disease, such as large quantities of brandy, and also of laudanum, and other medicines. She was greatly weakened both in body and in mind; and, for upwards of three months before her death, she was unable to attend to, or transact the business connected with the household, or other matters of which she had previously taken the active charge, and for a great portion of that time, she was totally unfit and unable to attend to or understand any business whatever.” “That the defenders, Dr and Mrs Ross, taking advantage of the opportunities afforded to Dr Ross, by his attendance on Miss Suttie, and confidential communications with her as her medical adviser, and of the foresaid conversations, correspondence, and intimacy between her and Mrs Ross, and also of the weak state of mind and body into which Miss Suttie had been brought by disease, and of the effect produced on her mind and judgment by the foresaid erroneous notions and delusions on religious subjects, acquired an entire and undue ascendency over Miss Suttie's mind and feelings, and succeeded at length in impetrating and obtaining from her (chiefly through the direct instrumentality of Mrs Ross), the wills or testamentary writings quoted in the summons, and produced in process, for the terms of which reference is made to the documents themselves, which are here held as repeated.” That the said testamentary writings “are either without dates altogether, or bear dates which are different from the true dates.” And “that the said Miss Janet Grant Suttie was, at the time of executing the said wills or testamentary or other writings, in a weak and facile state of mind, and the said wills or testamentary or other writings, were impetrated and obtained from her without any onerous or just cause, through fraud and circumvention on the part of the defenders, or one or other of them, and through facility and weakness or mental delusion, on the part of the said Miss Janet Grant Suttie.”

The defenders averred that the holograph writing, founded on by them, bore the true date of 30th October, 1835; that “Miss Grant Suttie's mind was never affected by her bodily indisposition and infirmities;” and that her “judgment and mental powers remained unimpaired till within less than half an hour of her death.”

After a record was closed, a discussion arose respecting the terms of the issue which ought to be framed for trying the cause. The draft of the issue proposed by the defenders, and approved by the issue clerk, was in these terms:—“Whether, on or about the 30th day of October, 1835, or whether, from that date until the 7th day of January, 1836, the period of her death, the late Miss Janet Grant Suttie was weak and facile in her mind, and easily imposed on; and whether the defenders, or either of them, taking advantage of her said facility and weakness, did, by fraud or circumvention, obtain or procure from the said Janet Grant Suttie the will or testamentary writing sought to be reduced, being No. 13 of Process, and bearing to be dated the said 30th day of October, 1835, to the lesion of the granter?”

The issue proposed by the pursuer was in these terms:—“Whether, on or about the 30th day of October, 1835, or whether, between the said 30th day of October and the 7th day of January, 1836, at the date when the will or testamentary writing sought to be reduced, being No. 13 of Process, was granted, the late Miss Janet Grant Suttie was weak and facile in her mind, and easily imposed on; and whether the defenders, or either of them, taking advantage of her said facility and weakness, did, by fraud or circumvention, obtain or procure from the said Miss Janet Grant Suttie, the aforesaid will or testamentary writing, to the lesion of the granter?”

The pursuer, in support of his draft issue, pleaded, that a holograph writing did not prove its own date; ¹ and where the writing was impetrated by fraud, through the granter's facility, there was not even the slightest presumption that the date affixed to it was a true date. For sach of these separate reasons, the testamentary writing, founded on by the defenders, was in the same situation as if it had contained no date at all. But if Miss Grant Suttie was in a state of facility, and was subject to fraudulent circumvention at the date when the writing was executed, whatever that date truly was, the writing was reducible. And therefore the issue proposed by the pursuer was exactly adapted to the case, because it put the question to the Jury whether she was facile, &c. at the date when the writing was executed. It was true that, in making up the record, the pursuer had averred, as far as he knew, the date from which the continuous facility of Miss Grant Suttie began; and he meant to prove his averments. But if he should be only able to prove facility during a certain period prior to death, and a shorter period than was averred on the record, it ought still to be left open to him to prove, if he could, that the deed was executed during that period; and, failing such proof, to fall back on the legal presumption that a writing, which disinherited near relations, her next of kin, for strangers to her blood, and which had, in law, no date at all, was executed during the period of facility, and while subject to the undue influence of these strangers.

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¹ 3 Ersk. 2, 22.

The defenders answered that the pursuer had positively alleged the existence of Miss Grant Suttie's facility, and had specially averred on the record that she was oppressed with disease from 2d July, 1835, till her death; that “for upwards of three months before her death” she was unable to attend as usual to household business, and “for a great portion of that time was totally unfit and unable to attend to, or understand any business whatever.” He had, therefore, no right to object to an issue, adapted to the state of the record, and specifying the date from and after which he had averred continuous facility to exist, on the part of Miss Grant Suttie; at least he had no right to object to an issue specifying precisely such date, whether he now undertook to carry it as far back as 30th October, 1835, or to any later period. It was true that a holograph writ did not prove its own date, and therefore the pursuer was not bound to prove Miss Grant Suttie's facility to have existed on 30th October, 1835, unless that appeared to be the actual date of the deed. But still, in justice to the defender, the question of Miss Grant Suttie's facility should be tried in reference to specific dates at which the pursuer alleged it to exist, so that the defender might have fair means of proving the contrary, being certiorated of the dates at which the pursuer was to undertake his proof. And if the pursuer merely proved, that, at a certain period between 30th October, 1835 (the date stated in the writing), and Miss Grant Suttie's death, she had been in a state of facility, there was no ground of presumption that the writing was executed during that particular period. On the contrary, in the absence of all proof of the date, extrinsic of the writing, the presumption of the law was in favour of authenticity, just because in this case, as in every other, the forgery of a date, if alleged, required to be proved by the party alleging it, on whom the onus probandi necessarily lay.

The Lord Ordinary “having heard counsel on the draft of the issues as prepared by the clerk, in respect the same appears to be correctly adapted to the allegations as they at present stand on record, appoints the same to be engrossed.” ^*

In reference to the issue proposed by the defenders, the Lord Ordinary farther pronounced this interlocutor:—“It is settled that this is the issue to try the cause.”

The pursuer presented a reclaiming note, craving the Court to alter the interlocutors of the Lord Ordinary, to approve of the issue proposed by him (pursuer), or to alter the issue approved by the Lord Ordinary. He, at the same time with moving the reclaiming note, made a motion in the Inner-House, to the same effect with the prayer of the note. He explained that he had adopted this two-fold course of proceeding because it had been doubted whether the regular mode of bringing such a matter under review was by reclaiming note, or by motion, and therefore, ob majorem cautelam, he had resorted to both. ¹