Scottish Court of Session Decisions

David Hannah senior died at Girvan on 13th March 1866, leaving a trust-disposition and settlement dated 9th March, whereby he disponed to his grandson David Hannah—eldest son of the pursuer, David Hannah junior, who was eldest son and heir-at-law of the testator-certain heritable subjects in or near Girvan. The testator directed payment of certain legacies, and appointed one-half of the residue to go to the pursuer. The pursuer, who at that time resided in England, arrived at Girvan a day or two after his father's death. After the funeral, the pursuer and the other relations met, along with Mr Murray, solicitor, Girvan.

The pursuer alleged—“Mr Murray told the pursuer that he had a will made by his father, which he wished to read. He did not read over the whole of it, but only such parts as he selected, and then produced a long paper which had previously been prepared by him, and which he proceeded to read to the pursuer. This document, which, so far as the pursuerrecollects, purported to be a deed approving of his father's settlement, the pursuer was asked by Mr Murray to sign, but he refused to do so. He had never seen Mr Murray before this occasion, and this was the first intimation given to the pursuer that any one wished him to subscribe such a deed.

“(8) Thereupon Mr Murray, without consulting the pursuer, or obtaining his consent, wrote out another and shorter document on the back of the said trust-deed and settlement, and said that the pursuer would surely sign it, as it was for his good and for the good of all to do so. He also stated that the deceased was in his senses when he subscribed the will. The said defender, John Hannah, and other parties in the room, intervened, and said to the pursuer that Mr Murray was a very honest man, and that they were sure he would not ask the pursuer to sign anything but what was right. The pursuer, induced by the persuasions of the defenders, and on the faith of these representations, and being led by them to believe that it was a mere formal document, necessary on the death of a person leaving property, and that it was for his own interest to do so, signed the writing on the back of the will. He had no idea that by so doing he was giving up anything he was by law entitled to, and was not aware that the object of the document was to deprive him of the heritable estate in question; and if he had been aware of this he would not have signed the deed.

(9) The said writing signed by the pursuer on the said 17th of March 1866, by which he now finds, upon inquiry, that he is supposed to have renounced his legal rights, runs as follows:—‘I, David Hannah, eldest son of the within designed David Hannah, hereby ratify and approve of the within written trust-disposition and settlement in all particulars, and renounce my right of succession as heir-at-law to the heritable estate of my deceased father, David Hannah, on the ground of deathbed, or any other ground competent to me in law.—In witness whereof, this minute, written by William Murray, solicitor, Girvan, is subscribed by me at Girvan, upon the 17th day of March 1866 years, before these witnesses, the said William Murray and John Scott, farmer, Bridgehouse, Whitehorn.

(Signed) David Hannah.

(Signed) W. Murray, witness.

(Signed) John Scott, witness.’

(10) This minute of ratification and renunciation was signed by the pursuer in ignorance of its true intent and legal consequences. He had no knowledge of the law of deathbed, and of his consequent legal rights. From his being long resident in England before his father's death, he had no one near at hand who could have informed him of his legal rights, before coming to Scotland. After he came, no time was given to him to consult any one on the subject, except Mr Murray, on the occasion above referred to, who, acting on the employment and in the interest of the defenders, advised and persuaded the pursuer to sign the document in question, and that without informing the pursuer of what his legal rights were, or what was the true nature and object of the document.”

The pursuer now sought reduction of the trust-disposition and deed of renunciation on the head of deathbed, on the ground of essential error.

The defender alleged—“When the pursuer came to Girvan he was informed generally of the terms of the settlement which his father had made, and after the funeral the whole deed was read over to the pursuer by Mr Murray, and its nature and import fully explained. At the same time, Mr Murray informed the pursuer of his legal rights as heir-at-law, and that he would be entitled to set aside the deed on the ground of deathbed, if he thought proper to do so. The pursuer fully considered the whole circumstances, and expressed his approval of the deed, and his readiness to ratify the same, and to renounce all right of challenge competent to him. Accordingly, at the pursuer's request, and to carry out the pursuer's intention openly expressed before the whole family, Mr Murray wrote upon the deed itself the minute of ratification and renunciation which is quoted in article 9th of the pursuer's condescendence. It was read over to the pursuer, its terms and nature explained, and it was thereupon executed before witnesses in common form. Besides the formal ratification executed by the pursuer, there was also a minute signed, on the 17th March, by the whole members of the family, including the pursuer, agreeing to abide by the settlement of the deceased as the rule of succession to his heritable estate.”

Page: 330↓

A proof was taken. The pursuer deponed—“After the funeral I went up to ray brother John's house, and John Scott and James M'Kechnie came up and asked me to go down to my uncle Robert's house. This was in the afternoon, immediately after the funeral. I refused to go at first. I believe my brother also said something about not going, but I did not pay much attention to what he said. Scott and M'Kechnie came back again for me in a short time, and, after being pressed a little, I agreed to go with them to my uncle's house. When we got there, my sister Mary (Mrs M'Kechnie), my uncle Robert and his wife, and Mr Murray were there. My uncle and his wife left the room as soon as I and my brother and Scott and M'Kechnie went in. When we went in, Mr Murray said he had a will to read which my father had made, and he read a part it. He did not explain it at all; he just ‘hummed and hawed’ a bit. I could not tell very well what he was saying. The persons present were—myself, my brother John, John Scott, James M'Kechnie, Mrs M'Kechnie, and Mr Murray. After he had read that part of the deed, Mr Murray pulled a paper out of a bundle of papers, and read something out of it to me, but I could not understand it. He told me it was a paper could not understand it. He told me it was a paper that required to be signed about my father's will. I told him I did not understand it. He asked me to sign it and I refused. He then began to write out another. I think it was a deal shorter than the first one, at least he was not so long in reading it. He asked if I would sign that one, and I said I did not know. He said that a paper like that required to be signed about the will. He did not say much more about it, only that it required to be signed, and I said I did not understand it. I asked Mr Murray if my father's will could be broke. I said—‘Is a will legal when a man makes it in his senses?’ and he told me my father was in his senses when he made the will. I asked him if a will was legal when it was drawn by a lawyer and the man who made it was in his senses, and he said it was. He said that I could not break the will. He told me that I might challenge it. I asked him if I might consult a man of business, and my brother John said there was no use for that—that Mr Murray was a very honourable and a very decent man. Mr Murray also said there was no use for that—that my father's will was a just and equitable will. I could not say whether any other body said anything when I said I would like to see a man of business; I was sitting between these two. I then signed that document, because Mr Murray said it was for the good of all. I signed it on these persuasions by my brother and him. Mr Murray did not explain fully to me the nature of my father's will. I did not hear him make any explanation at all after the will was read. He read a bit of it about the legacies that wore to be paid to my brother and sisters. He did not say out of what money these were to be paid. He described the nature of some of the properties that had been left by the will. He did not explain the nature of the ratification which I signed. I do not remember what was the first one that was read, but I know it was longer than the second one. When he read the first one, I told him I did not understand it. I did not ask him anything about the rents; but he told me I was to get all the rents of the property, and that I would be entitled to collect them. I understood by that that I was to get them for my own use.”

The other evidence supported the statements of defender, and it appeared that the testator's reason for leaving the property to the pursuer's son instead of the pursuer was, that the pursuer was an undischarged bankrupt.

The Lord Ordinary ( Mure) assoilzied the defender.

The pursuer reclaimed.

Crichton and Deas for reclaimer.

Gifford and Shand for respondents.

At advising—