Scottish Court of Session Decisions

Thomas Melville Russell, sometime merchant in Calcutta, died at Bridge of Allan on 3rd February 1891, survived by two next-of-kin, his nieces Mrs Helen Taylor Russell or Bowman and Miss Elizabeth Francis Russell.

On his death it was found that Mr Russell had left two trust-dispositions and settlements, the latter of which revoked the former.

By the earlier deed dated 2nd December 1882 Mr Russell granted and disposed to certain trustees his whole means and estate, and appointed them at his death, after paying his debts, &c., to realise the whole residue and pay over the whole proceeds equally among the Society for the Propagation of the Gospel in Foreign Parts, the British and Foreign Bible Society, the Society for Promoting Christian Knowledge, the Church of Scotland. to be used for their Foreign Mission Schemes, and the Free Church of Scotland, to be used for their Foreign Mission Schemes.

By the second trust-deed, dated 24th October 1890, Mr Russell revoked all former settlements and granted and disposed to certain trustees his whole means and estate, and appointed them, after payment of his debts, &c., to realise his whole means and estate, and, under burden of two annuities of £100 each, to pay and make over the whole residue to the Mildmay Mission for the Jews, the director of which was the Reverend John Wilkinson, 79 Mildmay Road, London, to be expended or employed at discretion in aid of the objects for which the said Mission was established.

After Mr Russell died all the trustees named in the second trust-deed refused to accept of the trust except Duncan Mackinnon. He accepted and thereafter assumed Neil Macmichael as co-trustee, and on 19th October 1891 they were confirmed as executors-nominate of Mr Russell by the Sheriff-Substitute of the Lothians at Edinburgh.

Thereafter Mrs Bowman brought an action of reduction of the two trust-deeds in the Court of Session, calling all parties interested as defenders.

Inter alia, the pursuer averred on record—“(Cond. 4) At the time when Mr Russell signed the said trust-disposition and settlement of 2nd December 1882, and for some years previously, he was of unsound mind. He had suffered from sunstroke when out in India, and his mental faculties had been thereby much weakened. At the time of signing the said deed he was not of sound and disposing mind. More particularly, he was a religious monomaniac, and believed that he could only obtain salvation in the hereafter by devoting his whole time and resources to religious objects. The said deed was not the result of his sound decision, but was subscribed by him while suffering under mental delusions and hallucinations. At the time of subscribing the said deed he was mentally quite unfit to make a valid testament, and the said deed is void, as not being the expression of his sane decision, but of his diseased mental state. (Cond. 6) When Mr Russell signed the said trust-disposition and settlement of 24th October 1890, he was not of sound disposing mind, and was utterly unfit, owing to mental disease to understand its import. The weakness of mind mentioned in article 4 hereof had been increasing steadily, and showed itself continuously in new ways. He was completely possessed of religious monomania. He believed himself miserably poor, so that he could not afford money to maintain himself. He consequently deprived himself of necessary sustenance for months prior to the signature of the said deed, and his mental incapacity was increased by bodily weakness. At the time of signing the said deed Mr Russell was a fit subject for admission to a lunatic asylum. The said deed was in no way the expression of his sound and disposing mind. (Cond. 8) The Mildmay Mission to the Jews is an institution having its headquarters in London. It professes to have missions in various places in Russia, Roumania, Brazil, and other parts of the world, besides working miscellaneous organisations in London itself. The defender the Rev. John Wilkinson is the founder, treasurer, and director of the Mission. Mrs Wilkinson is the hon. secretary and correspondent. Mr Samuel Hinds Wilkinson is accountant and assistant correspondent; and Miss Florence Wilkinson is deaconess. Shortly before his death the late Thomas Melville Russell gave to the Mission certainly not less than £10,000, and it is averred as much as £15,000. This sum was intended by the donor to be devoted to the purchase of New Testaments for behoof of Jews, but it has not been expended. Of the sums received by the said Mission not half is expended annually on its professed objects. As matter of fact the Mildmay Mission is an utterly irresponsible institution, and practically consists of the said Rev. John Wilkinson and the other members of his family. The said Rev. John Wilkinson is entirely uncontrolled in his disposal of the funds of the so-called Mission, and there is absolutely no security that any money left to the said Mission will be applied to any of its professed objects.”

Defences were lodged by the Society for the Propagation of the Gospel in Foreign Parts, the British and Foreign Bible Society, and the Society for Promoting Christian Knowledge, who pleaded, inter alia—“(2) The pursuer's statements so far as directed against the deed of 1882 being irrelevant, and, separatim, being untrue, the present defenders are entitled to be assoilzied with expenses. (3) The deceased having been in no way incapacitated from making the trust-disposition and settlement of 2nd December 1882, the defenders are entitled to be assoilzied with expenses.”

Defences were also lodged for the executors-nominate,

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who pleaded—“(2) The pursuer's averments are irrelevant. (3) The defenders should be assoilzied, in respect ( a) that pursuer's averments, so far as material, are unfounded in fact; ( b) that the deceased was in no way incapacitated from making the will of 1890.”

Defences were also lodged for the Mildmay Mission to the Jews, who averred, in answer to the pursuer's statements on record concerning their Mission—“Admitted that the Mildmay Mission to the Jews has its headquarters in London, and has agents in various parts of the world. The Mission has over fifty agents at home and abroad. Admitted that the defender the Rev. John Wilkinson is the founder, treasurer, and director of the Mission, and that his wife and their son and daughter take part in the work thereof. Quoad ultra denied. During the period between 1884 and the date of his death Mr Russell freely and voluntarily made certain donations from time to time to the Mildmay Mission to the Jews, amounting in all to about £10,220. These sums, with the exception of a part of a donation of £5000 received in August 1890, which is being spent from time to time as needed, have all been expended upon the objects for which they were given to the Mission by the donor. The whole property of the Mildmay Mission is vested in responsible trustees; and the accounts of the Mission are audited yearly by Messrs Arthur J. Hill, Vellacott, & Company, chartered accountants, London.” And pleaded, inter alia—“(2) The statements of the pursuer are not relevant or sufficient to support the conclusions of the summons. (3) The pursuer's whole material statements being unfounded in fact, the defenders ought to be assoilzied with expenses.

On 25th January 1893 the Lord Ordinary ( Stormonth Darling) approved of the following issues for the trial of the cause—“(1) Whether the deed No. 21 of process was not the deed of the deceased Thomas Melville Russell? (2) Whether the deed No. 10 of process was not the deed of the deceased Thomas Melville Russell?”

“ Opinion.—I have carefully considered the question whether this case should be tried upon the issues proposed or upon a proof, and I have come to the conclusion that no sufficient reason has been stated against a jury trial. It is impossible to say that a jury is not the appropriate and indeed constitutional tribunal for deciding questions of insanity. They are so in all cases of cognition, and the most delicate and important questions relating to insanity in criminal matters are entrusted to their arbitrament. Here the only case made against that form of trial is that the defenders might suffer prejudice, and in particular that the beneficiaries under the deed of 1882 might find themselves involved in the same condemnation as the beneficiaries under the deed of 1890 if the jury reached the conclusion that the deed of 1890 was bad. There is some force in that observation, but I think it implies that the jury would not act in conformity with their duty, and in particular that they would pay insufficient regard to the directions which it would be the duty of the presiding Judge to give. Accordingly, I do not think that that is a kind of prejudice which I can reasonably anticipate, and on the whole matter I think the ordinary course must be followed of leaving this question to be decided by the constitutional body. Some reference was made to cases in which the form of trial by proof before a judge was preferred, but none of them seem to me to square with the present. The nearest perhaps was the case last year of Gill, in which Lord Kyllachy, and subsequently the Inner House, decided that a will was good—the will having been executed by a man who very shortly afterwards committed suicide. I understand that the specialty there was the close correspondence in point of time between the will and the suicide, and undoubtedly that case did raise some very delicate questions with regard to the connection between the will and the specific delusions under which the man was said to have been labouring. Here there do not seem to me to be any peculiarities of that kind, or indeed special difficulties of any kind.

There being no objection to the form of the issues, I shall therefore approve of them.”

The defenders the Mildmay Mission to the Jews reclaimed, and argued—The case should not be tried by jury, but there should be proof before a judge. There were three reasons for this. (1) The matter was complex. The question at issue turned on the mental condition of a gentleman during eight years, and more especially at the two periods in 1882 and 1890 when the wills were made. It was therefore a case in which a jury could not be able to discriminate. The case of Gill, referred to in the Lord Ordinary's note, was similar, and had been tried by proof before a judge. Other cases where the matter in issue between parties extended over a long tract of time, and which were therefore not sent to a jury, were— Life Association of Scotland v. Foster, January 31, 1873, 11 Macph. 351; Scottish Widows' Fund v. Buist, July 14, 1876, 3 R. 1078; Macfie v. Stewart, January 24, 1872, 10 Macph. 408; Blair v. Macfie, February 2, 1884, 11 R. 515; Scottish Rights of Way Society v. Macpherson, October 23, 1886, 14 R. 7. (2) There was always a natural prejudice in the mind of a jury against a testator's leaving his money to a foreign mission, especially one of this sort, instead of to his relations. The case would be more equitably considered by a judge. (3) much of the evidence in this case would have to be taken on commission in India, and the sending of a lot of evidence so taken would tend to confuse a jury.

Counsel for the pursuer were not called on.

At advising—