Scottish Court of Session Decisions

This was an action raised by Mrs Yeatman, wife of Harry Yeatman, retired commander E.N., against James Proctor and others, some of the next-of-kin and the heir-at-law of Miss Macpherson Grant of Aberlour, Banffshire, concluding for reduction of a pretended deed of revocation bearing to be executed by heron 2d November 1876, and which bore that she thereby revoked all testamentary settlements theretofore executed by her, and

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in particular a certain trust-disposition and settlement dated 8th March 1873.

Miss Grant in 1854 had succeeded on the death of an uncle to a fortune amounting to upwards of £200, 000 in land and moveable property. Mrs Yeatman, then Miss Charlotte Temple, had met Miss Grant in London in 1864, and thereafter the two ladies became very fond of one another, till ultimately, in 1865, Miss Temple went to live with Miss Grant, and continued to do so until her marriage in February 1876. More than one will was executed by Miss Grant in Miss Temple's favour, the last of them being dated 8th March 1873, by which deed it was averred by the pursuer in this action that the succession to Miss Grant's estate fell to be regulated.

The document under reduction was executed in October or November 1876, and was in the following terms:—‘I, Miss Margaret Gordon Macpherson Grant of Aberlour House, in the county of Banff, do hereby revoke all testamentary settlements heretofore executed by me; and, in particular, without prejudice to the generality of this revocation, I hereby revoke a trust-disposition and settlement dated the 8th day of March 1873, now in the custody of myself; in witness whereof I have subscribed these presents, written at my request by Simon Keir, Burnside, Duffus, by Elgin, at Aberlour House, on the 2d day of November 1876, before these witnesses, the said Simon Keir, tenant of Burnside, Duffus, by Elgin, and William Watt, my personal servant. (Signed) M. G. Macpherson Grant; S. Keir, witness; William Watt, witness.”

In this action of reduction of that document the pursuer made averments upon which she proposed the following issues:—“(1) Whether the deed of revocation, of which No. 11 of process is an extract, is not the deed of the deceased Miss Margaret Gordon Macpherson Grant of Aberlour? (2) Whether in granting the said deed the said Miss Margaret Gordon Macpherson Grant was under essential error as to its import and effect? (3) Whether at the date of the said deed the said Miss Margaret Gordon Macpherson Grant was weak and facile in mind and easily imposed upon, and whether Simon Keir, tenant of Burnside, Duffus, by Elgin, taking advantage of her weakness and facility, did by fraud or circumvention impetrate and obtain the said deed of revocation from the said Miss Margaret Gordon Macpherson Grant to her lesion?”

There was no objection on the part of the “defenders to the first and third issue. It was, however, contended that there was no relevant statement on record to justify the second issue.

The averments upon which the issue was asked were as follows—“(Cond. 9) No draft of said document was submitted for Miss Grant's consideration, and neither the principal nor a copy thereof remained in her custody, although the said trust-disposition and settlement was carefully preserved by her, and remained in her repositories till the last. The said document was not prepared or revised by or submitted to Miss Grant's solicitor before her signature was obtained thereto, although Miss Grant's local agents, who had prepared her settlement, were at Elgin, close at hand. It was not duly executed by Miss Grant, nor did the witnesses see her sign or hear her acknowledge her subscription, and it is wanting in the solemnities required by law. (Cond. 11) The said deed was signed by her in essential error as to its import and effect, induced by the misrepresentations or concealment of the said Simon Keir. Had she known and understood its import and effect she would not have signed any such document. In particular, she did not understand that the effect of the deed would be intestacy, and that all her directions for the disposal of her estate would be recalled; and she did not understand that the entail which she directed to be made could not be made, and that every one of the special legatees, who were her personal friends, were to be cut out in favour of heirs ab intestato with whom she would not and with whom she never did associate. (Cond. 12)… The effect of said writing, if the same be sustained, is not only to recall the foresaid trust-disposition and settlement of 1873, by which Miss Grant sought to perpetuate the name and family of Grant of Aberlour either in the person of her own descendants or of those of the pursuer or her nephews, but also to revoke the specific legacies in favour of the pursuer and Miss Grant's other friends therein mentioned, which Miss Grant never intended to revoke. The said writing also revokes a deed of directions executed by Miss Grant on 14th April 1874, in furtherance of what had been one of the most cherished schemes of her life, viz., the establishment and endowment of an Episcopal church and schools at Craigellaehie. For this purpose Miss Grant had taken a feu from Lord Fife at Craigellachie, upon which a school was built, which was used as a church on Sundays, and she engaged a clergyman at her own expense to officiate. In 1874 she also acquired a feu from Mr Grant of Elchies of a piece of ground in the village of Aberlour for a girls' school. The services at Craigellachie were so well attended that Miss Grant resolved to build a church on her own property and endow it and the schools; and the foresaid deed of directions was accordingly prepared by her agents and executed. Following out Miss Grant's intentions, a constitution was obtained from the bishop, and as she had undertaken to build and endow the church the patronage was vested in her and her successors in the estate of Aberlour so long as they were members of the Episcopal communion. The church was partly built and consecrated at the time of Miss Grant's death, but no further deed of endowment was executed by her. If the will and deed of directions are to be held as recalled, one of the chief objects of Miss Grant's life will be frustrated. (Cond. 13) If the deed under reduction be given effect to, the result will be intestacy, and the succession will be opened to persons whom Miss Grant never intended to succeed to her, with whom she never in any way associated, and of whom when she spoke of them she did so in terms implying aversion and dislike. She never corresponded with any of them, and though they were in humble circumstances she never aided them by pecuniary assistance. She did not and could not understand that the effect of the deed she was signing was to hand over her property to these persons and divert it from her intimate friends.

Mr Simon Keir, it may be explained, was a London merchant, who had acted as factor in the keeping of the accounts of estates belonging to Miss Grant in the West Indies. The pursuer averred that he had visited Miss Grant in October and November 1876, and that it was on the

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occasion of that visit that “Mr Keir, in order to gratify his feeling against the pursuer, and taking advantage of the facility and weakness of Miss Grant's mind, did, by fraud or circumvention, obtain her signature to the document in question.”

The Lord Ordinary ( Rutherfurd Clark) disallowed the second issue, and approved the first and third for the trial of the cause.

The pursuer reclaimed against this interlocutor, and sought to have the second issue allowed.

At advising—