Scottish Court of Session Decisions

This was an action of reduction at the instance of Nedrick Jarvie, rope-spinner, Stobcross Street, Glasgow, of a deed of settlement which bore to be executed by Mrs Robina Jarvie or White. The defenders were Alexander White, the husband of the testatrix, and John and Alexander White, his sons by a former marriage, and others.

The pursuer averred, inter alia—“(Cond. 8) The said pretended deed of settlement was prepared by Mr Low, of the firm of Howie & Low, writers, Glasgow, who was then acting as agent of the defender the said Alexander White, on the employment and instructions of the said Alexander White. Neither Mr Low nor anyone on his behalf ever received any instructions, either written or verbal, from the said Mrs White, or indeed ever saw her. No draft of the said pretended settlement was submitted to the said Mrs White, and it was not read over to her, and she was in such a weak state of health, both in body and in mind, that she could not have understood it supposing it had. Neither was the draft nor the principal shown to, or read to or by, any of her relatives, though two of them were residing in the same house with her in Arran from the time she went to Arran till she returned home. At the date of the said deed of settlement the said Mrs White was not of a sound disposing mind, and was, from mental and physical weakness, incapable of writing or signing her name, and incapacitated from giving directions in regard to her affairs or the disposal of her estate after her death. The testing clause states that the said pretended deed was subscribed at Glasgow on the 21st June 1873. Mrs White was not at Glasgow on that day. If the pretended deed was signed by her at all (and the pursuer avers it was not), it was signed at Arran on a different day. The defender, the said Alexander White, after procuring Mrs White's signature to the pretended deed (assuming her alleged signatures thereto to be genuine), took it back to Glasgow, got the testing clause filled in, and then it was kept locked up till Mrs White's death, and she never had the opportunity of seeing it, and never knew of its existence. (Cond. 9) Even on the assumption that at the date of the said pretended deed of settlement the said Robina Jarvie or White was not so mentally weak as to make her wholly incapable of executing a settlement, she was yet so weak and facile in mind as to make her easily imposed on, liable to circumvention, and incapable of resisting importunity; and the said pretended deed (assuming her alleged signatures thereto to be genuine) was procured from her by the defender the said Alexander White taking advantage of her said weakness and facility and obtaining the said deed from her, to her prejudice and lesion, and to the prejudice and lesion of the pursuer, by fraud and circumvention and undue influence, or one or other of them, on the part of the said Alexander White. (Cond. 10) Assuming that the said Robina Jarvie or White was capable of understanding the said pretended deed of settlement, and that her alleged signatures thereto are genuine, the pursuer alleges that the said pretended deed was signed by her under essential error as to its nature and effect, induced by fraudulent representations in regard to, or fraudulent concealment of, its true meaning and effect on the part of the defender the said Alexander White.”

The issues, as approved of by the Lord Ordinary, were as follows:—“(1) Whether the signatures ‘Robina White’ to the deed No. of process are not the geniune signatures of the deceased Mrs Robina Jarvie or White? (2) Whether the said deed is not the deed of the said Mrs Robina Jarvie or White? (3) Whether at the date of the said deed the said Mrs Robina Jarvie or White was weak and facile in mind and easily imposed upon; and whether the defender Alexander White, taking advantage of the said weakness and facility, did by fraud or circumvention impetrate and obtain the said deed from the said Robina Jarvie or White, to her lesion? (4) Whether the said deed was executed by the said Mrs Robina Jarvie or White under essential error as to its nature and effect?”

The defenders reclaimed, objecting in toto to the last issue; and the Court altered the issues to the effect of deleting No. 1 on the ground that any case that could be tried under the first issue could be tried under the second, although it might be necessary that the jury should return a special verdict. The Court also caused to be added to the last issue “induced by the fraudulent misrepresentations of the said Alexander White.”