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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hogg and Another (M'Ghie's Trustees) v. Urquhart [1887] ScotLR 25_223 (16 November 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/25SLR0223.html
Cite as: [1887] SLR 25_223, [1887] ScotLR 25_223
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SCOTTISH_SLR_Court_of_Session
Page: 223↓
Court of Session Outer House.
[
v.
Facts:
Form of issues adjusted for the trial of an action of reduction of a testamentary writing
upon, inter alia, the following grounds
(1) That the deed, if signed by the deceased, was not in fact executed by him as a probative writ, because the alleged witnesses were not present as witnesses at the time of subscription, and because the testator did not “at the time of the witnesses subscribing”
Page: 224↓
acknowledge his subscription; and (2) that the deceased was induced to subscribe by a representation that as no witnesses were present the writing would not be binding or complete.
James Hogg, writer, Bellshill, and William Neilson, bank agent, Bellshill, trustees and executors of the late William M'Ghie, portioner, Bellshill, acting under his trust-disposition and settlement, dated 14th November 1883, and codicil thereto dated 30th December 1885, raised this action against Adam Urquhart, flesher, Bellshill, for reduction of a writing bearing to be dated 12th July 1886, and to be duly witnessed by Robert Harvie, cabinetmaker, and John Baird, carter, both residing in Bellshill. By this writing the deceased William M'Ghie left and bequeathed to the defender the sum of £300, being the amount of a bond and disposition in security granted by the defender and his father in November 1883, in favour of William M'Ghie, over their property in Bellshill. .
The pursuers averred that William M'Ghie at the time of his death, which took place on 28th January 1887, was between seventy-three and seventy-four years of age, and that for some years prior to his death Mr Hogg had been his sole agent, and as such had prepared his trust-disposition and settlement and codicil thereto. In Cond. 7 the pursuers averred—“For some time before July 1886 the defender urged the said William M'Ghie to assign to him or to discharge the said bond, but Mr M'Ghie refused to do so. The pursuer knew that Mr Hogg was Mr M'Ghie's agent, but he did not consult him on the subject, or let him know anything about it; on the contrary, in order to secure his purpose, he endeavonred to conceal the matter from Mr Hogg, and in every way to obtain influence over Mr M'Ghie, and he succeeded in doing so. The defender also got an agent on his instructions to prepare the draft of the writing in question, and then extended the same himself. On or about 12th July 1886 the defender induced Mr M'Ghie to put his name to the said paper, representing to him that the same was not binding on him, as no parties were called to witness its execution. Mr M'Ghie did not sign the said writing in the presence of instrumentary witnesses, at all events he signed it in the belief that no one was present to witness his signature, and he never became aware that anyone had seen him sign the deed, or was present when it was signed, or that any persons had adhibited their signatures as witnesses to his signature, nor did he ever acknowledge his signature to anyone. None of the witnesses signed the said deed in his presence, or with his knowledge, and he did not intend to sign the same in the presence of any witness, but, on the contrary, would not have signed if he had known any witness was present. If John Baird and Robert Harvie, the alleged witnesses to the said document, saw Mr M'Ghie signing the same, which is denied, it was quite unknown to Mr M'Ghie, who bad previous to the said 12th day of July 1886 refused to sign a document in presence of witnesses when requested by the defender to do so. He put his name to the document in question in the defender's shop. It was not read over to Mr M'Ghie, and he got no opportunity of reading it, and in point of fact he was not aware of its purport and effect. He had never given any directions for the preparation of any such document, and he never became aware of its contents.” They also averred that for at least twelve months before his death he was not of a sound disposing mind, that he was from physical and mental weakness quite incapable of transacting or giving instructions for the transaction of business, that his mind was gone when he signed the document sought to be reduced, that he was so very facile from mental disease, caused partly by age and physical weakness, as to render him liable to circumvention, and incapable of resisting importunity, and that the document was procured from him to his and the pursuers' lesion by fraud and circumvention and undue influence on the part of the defender, in pursuance of a fraudulent design to benefit himself.
The plea-in-law for the pursuers was as follows:—“The document in question should be reduced in respect—(1) It is not the deed of the said William M'Ghie; (2) it was not signed in presence of instrumentary witnesses, and the alleged witnesses did not hear Mr M'Ghie acknowledge his subscription; (3) the deceased Mr M'Ghie did not intend to sign in presence of witnesses, and did not do so, or otherwise did not know he had done so; (4) separatim, the said deed was signed when Mr M'Ghie was weak and facile in mind, and easily imposed on, and was procured from him by fraud and circumvention on the part of the defender taking advantage of said weakness and facility; (5) it was obtained by undue influence exercised by defender on the said William M'Ghie.”
The following issues were proposed by the pursuers—“(1) Whether the writing of 12th July 1886 is not the deed of the deceased William M'Ghie? (2) Whether both Robert Harvie, cabinetmaker, Bellshill, and John Baird, carter, Bellshill, were not instrumentary witnesses to the writing of 12th July 1886? (3) Whether the deceased William M'Ghie did not sign the writing in presence of Robert Harvie, cabinetmaker, Bellshill, and John Baird, carter, Bellshill, as instrumentary witnesses, or whether he did not acknowledge his subscription to the said alleged witnesses? (4) Whether on or about the 12th day of July 1886 the said deceased William M'Ghie was weak and facile in mind, and easily imposed upon, and whether the defender, taking advantage of the said weakness and facility, did by fraud or circumvention obtain or procure from the said William M'Ghie the said writing, to the lesion of the said William M'Ghie? (5) Whether the subscription of the said deceased William M'Ghie attached to the said writing was procured by means of fraudulent representation on the part of the defender, to the lesion of the said William M'Ghie.”
The defender took exception to the second, third, and fifth issues.
For the forms proposed the pursuers relied upon the cases of Cumming v. Skeoch's Trustees Jan. 17, 1879, 6 R. 540; Tener's Trustees v. Tener's Trustees, June 20, 1879, 6 R. 1111 (see Lord Gifford's opinion); Arnott and Othersv. Burt, Nov. 14, 1872, 11 Macph. 62; Stewart v. Burns, Feb. 1, 1877, 4 R. 427 (Lord Justice-Clerk, p. 432). They argued that if the form of issue in Morrison v. Maclean's Trustees (infra) was adopted, the words “as witnesses to the deed,” should be inserted.
The defenders maintained that the form of the third issue in Morrison v. Maclean's Trustees (June 14, 1861, 23 D. 1099, and Feb. 27, 1862, 24 D. 625) given at p. 627 of 23 D., was the proper form of issue for the trial of the case.
In the course of the argument the Lord Ordinary (
The Lord Ordinary approved of the following issues for the trial of the case—“(1) Whether the writing of 12th July 1886 is not the deed of the deceased William M'Ghie? (2) Whether at the time when the names of Robert Harvie, cabinetmaker, Bellshill, and John Baird, carter, Bellshill, were adhibited as alleged witnesses to the writing of 12th July 1886, they, or either of them, did not, as witnesses to the deed, see the deceased William M'Ghie subscribe the same, and did not hear the said William M'Ghie acknowledge his subscription? (3) Whether the subscription of the said deceased William M'Ghie, attached to the said writing, was procured by means of fraudulent representation on the part of the defender, to the lesion of the said William M'Ghie? (4) Whether, on or about the 12th day of July 1886, the said deceased William M'Ghie was weak and facile in mind and easily imposed upon, and whether the defender, taking advantage of the said weakness and facility, did by fraud or circumvention obtain or procure from the said William M'Ghie the said writing, to the lesion of the said William M'Ghie?”
“ Opinion.—The first issue was not objected to. It is the usual issue for trying a question as to the capacity of the maker of a deed; nor was any objection offered to the fourth issue as to facility and circumvention. The points discussed upon the second, third, and fifth issues are of some importance. They involve a decision as to the proper issues for trying the questions of fact raised upon condescendence 7, which is as follows—(reads Cond. 7, quoted above].
There are here two allegations. The first goes to this, that the deed (though signed by the deceased) was not in fact executed by him as a probative writ, because the alleged witnesses were not present, as such, at the time of subscription, and therefore did not see him subscribe within the meaning of the Statute 1681, and because the deceased did not ‘at the time of the witnesses subscribing' acknowledge his subscription. The other allegation is that the deceased was induced to subscribe the writing by a representation that as no witnesses were present the writing would not be binding or complete.
I think that the first of these allegations may be tried under one issue, and that neither the second nor the third of the proposed issues is in the proper form. My opinion is that the issue (No. 3, 24 D. 627) settled in the case of Morrison v. Maclean's Trustees, with a slight alteration adapting it to the alleged circumstances of the case ( 24 D. 625, and 23 D. 1099), is sufficient to try the question of execution. The terms of that issue imply that ‘at the time when the names of the alleged witnesses were adhibited' they must either have seen the granter subscribe, or have heard him acknowledge his subscription. This appears to me to be in accordance with the requirements of the Act 1681, and to be all that is necessary to enable the pursuer to ascertain by the verdict of the jury whether the alleged witnesses were present as witnesses to the subscription, and were entitled to subscribe as such. For example, if the witnesses were only present surreptitiously, and the writing was signed by the granter in the belief that there was no one present, and that he was not completing the execution of it, the pursuer will have an opportunity of asking a verdict to the effect that they did not, as witnesses, at the time when ‘they adhibited their signatures as witnesses,’ see him subscribe. What the statute requires is, that ‘no witness shall subscribe as a witness to any party's subscription unless he then knew that party, and saw him subscribe, … or that the party did at the time of the witnesses subscribing acknowledge his subscription.’ There are cases in which it has been held that a witness may subscribe ex intervallo, and that it is not essential that a witness should know the granter at the time of his subscribing. But I am aware of no case in which one who did not know the granter, and was not present ‘as a witness,’ has been held entitled ex intervallo to make a deed probative and complete by signing as a witness unless he heard the granter acknowledge his subscription at the time he so signed. Lord Cowan, in the case of Arnott v. Burt, 11 Macph. 72, explained that the case of Frank, M. 16,824, and 5 Pat. App. 278, was not such a case, and I think that the opinions given by Mr Bell in his treatise on Testing of Deeds, p. 256, show that the proceedings in that case were held to form a continuous transaction. And in the cases of Tener's Trustees, 6 R. 1111, and Stewart v. Burns, 4 R. 427, the case of a casual spectator or a concealed witness subsequently attaching his signature as a witness was clearly distinguished.
“It will be for the Judge at the trial to direct the jury as to what is required to nullify the subscription of a witness, and to disentitle the writer of the deed to say in the testing clause that it was subscribed in the presence of the persons subscribing as witnesses. But unless it is proved that the alleged witnesses neither saw the granter subscribe, within the meaning of the statute, nor heard him acknowledge his subscription at the time when they subscribed as witnesses, I think that the pursuers cannot succeed under the statute in nullifying the execution. It appears to me therefore that the issue settled in Morrison v. Maclean's Trustees is all that the pursuer is entitled to or requires.
With regard to the fifth issue, I have come to be of opinion that there is an intelligible and sufficient allegation of fraud, and that it may be allowed. It is possible that the pursuers, though they fail on the second issue, may be able to prove that the signature of the deceased was procured by the fraudulent representations alleged.
I think that the fifth issue, however, should take precedence of the question of facility and circumvention, which only arises if the deed was properly completed, so far as execution is concerned.
I have adjusted the issues in accordance with this opinion.”
Counsel for the Pursuers— Watt. Agents— J. & A. Hastie, S.S.C.
Counsel for the Defender— M'Kechnie. Agents— Macpherson & Mackay, W.S.