Scottish Court of Session Decisions

This was an action of reduction of a trust-disposition and settlement, executed by the late James Carstairs of Kelmondhead, in the parish of Torphichen, on February 11th, 1869. It was brought at the instance of George Love, the only surviving and accepting trustee under a previous trust-disposition and settlement executed by the said James Carstairs in 1862, and Ann Berwick or Sunter and others, the beneficiaries under that deed; against James, Thomas, and Robert Marshalls, the trustees and beneficiaries under the deed of 1869. The summons concluded for reduction of the said trust-disposition and settlement of 1869, and for a count and reckoning of the defenders' intromissions, as acting under it.

The pursuers set forth the nature and purposes of the deed of 1862, and disclosed their various interests as trustees and beneficiaries. They then explained the provisions of the deed of 1869, and the circumstances under which it had been granted in favour of the defenders, and to the pursuers' prejudice. The grounds of reduction are contained in the following articles of the condescendence:—“Cond. 9. At the date when the said trust-deed was executed, and for a considerable period previous, the said James Carstairs was not of disposing mind. He was quite incapable of understanding the nature, meaning, or purport of the said deed, and was not, at the time of its execution, in a sound and disponing state of mind. He never became so after the date of said deed, but continued incapable of granting such deed till he died. The said pretended trust-disposition and settlement is not the deed of the said deceased James Carstairs. Cond. 10. At the time of the said pretended trust-disposition and settlement the said James Carstairs was, and had been for a considerable period previously, completely under the influence and control of the defenders James and Thomas Marshall, the former of whom was residing with him at the date when the alleged settlement was executed, and the latter of whom resided within a short distance of Kelmondhead House; and the alleged settlement was executed by him under undue and improper influence on the part of the said James and Thomas Marshall, to the prejudice of his relations, favoured by the deed of settlement under which the pursuers are interested. Cond. 11. At the date of the said pretended deed, and for two or three years preceding the death of the said James Carstairs, the said James Carstairs was in a weak and facile state of mind, and easily imposed upon. He was completely subject to the influence of the defenders, or of some of them, and he could easily be persuaded to do any thing or to grant any deed which the defenders wished. The defenders, taking advantage of the weakness and facility of the said James Carstairs, abused their influence over him, and by fraud and circumvention impetrated the deed now under reduction, to his hurt and prejudice, and to the hurt and prejudice of the pursuers. Cond. 12. The said James Carstairs was an old man, upwards of eighty years of age. The settlement of 1862 was made in favour of his relatives, for whom he had always great affection and regard, and with whom he was on a friendly footing. The defenders almost took possession of the said James Carstairs; exercised a constant watch and surveillance over him; prevented his friends from having any intercourse with him; and by threats of ill-usage and otherwise prevailed upon him to sign the deed now under reduction. Cond.13. The said trust-disposition and settlement was also granted by the said James Carstairs without any just, necessary, or onerous cause; and he was impetrated and forced to execute the same for fear of bodily harm and other maltreatment being inflicted on him by the said James and Thomas Marshall.”

The pursuers pleaded—“(1) The pretended trust-disposition of 1869, under reduction, not being the deed of the said James Carstairs, the same should be reduced and set aside as concluded for. (2) The said pretended trust-disposition having been impetrated from the said James Carstairs through weakness and facility on his part, and by fraud and circumvention on the part of the defenders, the same should be reduced as concluded for. (3) Separatim, the pursuers are entitled to reduction of the said trust-disposition, in respect the same was impetrated from the said James Carstairs through force and fear.”

The defenders denied all these allegations of the pursuers, and pleaded that “the whole material averments of the pursuers being unfounded in fact, the defenders should be assoilzied from the conclusions of the summons.”

The following issues for trying the case were adjusted and approved by the Lord Ordinary ( Gifford).

1. “1. Whether the trust-disposition and settlement, No. 12 of process, is not the deed of the said James Carstairs.

2. 2. Whether, at the date of the said trust-disposition and settlement, the said James Carstairs was in a weak and facile state of mind, and easily imposed upon? and whether the defenders, James Marshall and Thomas Marshall, or either of them, taking advantage of his said weakness and facility, did, by fraud or circumvention, or intimidation, impetrate and obtain the said deed from the said James Carstairs, to his lesion?”

In approving these issues, the Lord Ordinary added the following note to his interlocutor:—

“ Note.—The only question of nicety and difficulty arising in regard to the present issues is, whether the pursuers are entitled to have the words ‘or intimidation’ inserted as part of the second issue, or, whether, if they are to insist on intimidation at all as a ground of action, they are not bound to take the ordinary issue of force and fear. The word intimidation is not used upon record, but it was admitted that there is sufficient averment of the thing, and the pursuers intimated their readiness, if necessary, to make a correction on the statement and plea. The Lord Ordinary is prepared to allow any such correction which, in

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his view, does not alter the nature of the case. Probably, without any amendment, the question sufficiently arises on the record as it stands.

The only authority or precedent, so far as the Lord Ordinary is aware, for inserting in such an issue the words ‘fraud or circumvention or intimidation’ is the case of Cairns v. Marianski, 12th March 1850, 12 D. 920; 12 D. 1286, H. L., 1 Macq. 212, and 766. In this case, which was a very peculiar and complicated one, such an issue was given applicable to a great many separate deeds and writings. In the House of Lords observations were made on the impropriety of embracing alternatives in issues, and the danger that a jury taking different alternatives might agree upon a verdict, while entirely at variance as to the true facts or grounds thereof.

The observations in Marianski's case have led to a good deal of discussion in later cases. In Mann v. Smith, 2d February 1861, 28 D. 435, it was contended in a case like the present, but without any allegation of intimidation, that the issue should ask whether the deed was impetrated by ‘fraud and circumvention,’ and not by ‘fraud or circumvention.’ The Court held that the words should be ‘fraud or circumvention,’ and this has been followed in many subsequent cases. In none of the cases, however, does there appear to have been an allegation of intimidation in addition to fraud and circumvention.

The Lord Ordinary is of opinion that the pursuers, having averred intimidation as one of the means by which the weakness and facility of the testator was taken advantage of and the deed impetrated, are entitled to have intimidation inserted along with fraud and circumvention in the same issue. In the Lord Ordinary's view there is no real alternative in the substance of the question. The question is, whether the deed was impetrated from a weak and facile man, and this is a simple and categorical question, Fraud, circumvention, intimidation, do not raise three alternative issues, but only indicate three ways, by some or by all of which the impetration was accomplished. Now admittedly fraud or circumvention are to enter the issue, and reasonably so, because they run into each other, and may be more or less combined, although either by itself would be sufficient. In like manner, intimidation, though quite different from circumvention, may have been employed along with it, or from time to time, and alternately with fraud, to bring about the end in view. In principle, therefore, there is the same reason for allowing a pursuer to prove that intimidation was one of the means of impetration, as for allowing him to prove that the impetration was accomplished by fraud or circumvention.

To compel the pursuers to take a separate issue on force or fear would be to put them to an unfair disadvantage, for they would fail unless they satisfied the jury that the deed was obtained by means of these alone, whereas they are surely entitled to succeed if they prove that the defenders, taking advantage of the testator's facility, impetrated the deed by fraud, circumvention, or intimidation, together or separately.

The remarks in Marianski's case had reference chiefly to other parts of the issue, and not to the mere methods or instruments of impetration.”

On a motion for the defenders to vary these issues by deleting the words “or intimidation” from the second issues:—

Shand and Mackintosh, for them, pleaded—(1) That these words should be deleted, on the ground that they did not represent what is meant; (2) that if it were found that they did so, the pursuers were bound to take a separate issue on that point, the ordinary issue, that is to say, of force and fear, which are terms well known in the law of Scotland, while that of “intimidation” is not. An issue of “force and fear” was not only the usual but the appropriate issue to take in a case like this, for these words were always construed according to the mental condition of the party, so that under that issue the pursuers would get all the benefit they could wish of the testator's alleged weakness and facility. They referred to Stair i., 9, 8, and iv, 40, 25; Bell's Prin. § 12; and Cassie v. Flemming, M. 10,279, there quoted. The first issue sent to trial in the recent case of Oelot v. Stewart, March 4, 1870, 7 Law Rep. 372, was the proper one here if this question was to be raised. They farther objected to the combination in the same issue of intimidation with fraud and circumvention, as if they could be classed together. The result of such an alternative issue might be very unfairly to give the pursuer an advantage by enabling him to get a verdict when the jury were really divided, one part affirming fraud or circumvention and negativing intimidation, and the other part doing the opposite. The case of Marianski, referred to by the Lord Ordinary, is the only precedent for such an issue; but after the remarks made in the House of Lords it is rather a beacon to warn than an example to follow.

Watson and Strachan, for the pursuers, admitted that there was a category of cases in the decisions of this Court where force and fear were put in issue, and another category where issues were framed on fraud or circumvention. But this does not prevent there being another class of cases still which came under neither of these categories, but in which, on the contrary, the threats or threatened violence or intimidation did not stand alone, but came in support of the fraud or deceit. In these cases, and the present was one of them, the intimidation would not have proved sufficient if alone used, but when combined with fraud or circumvention proved eminently successful.

Lord President—Should not your issue in that case have contained “and intimidation” instead of “or intimidation,” in accordance with the remarks of the House of Lords already referred to. I think the sole difference between English and Scotch lawyers on this point is, that they use “and” where we use “or,” but that the same thing is meant.

Watson referred to the case of Urquhart, 5 Macph. 45, as illustrating the use of “or” and “and” in cases where the issue is not properly alternative. He farther argued the three things fraud, circumvention, and intimidation may have operated conjunctly to impetrate the deed.

Lord President—I agree so far that if half of the jury were to find on fraud, and the other half on circumvention, their verdict might stand. But suppose half find on fraud, and the other half on intimidation, that is not necessarily the same thing.

At advising—