Scottish Court of Session Decisions

James Rae, Esquire, of Newton and Kirkpatrick, Dumfriesshire, died unmarried on 17th February 1894, leaving a trust-disposition and settlement dated 27th January 1894, under which his law-agent, J. F. Cormack, solicitor, Lockerbie, was sole trustee.

By said trust-disposition he left various legacies including an annuity of £200 to his sister, Mrs Mary Rae or Rooney, and £500 to the said J. F. Cormack, who was directed to hold the remainder and residue of the truster's means and estate, amounting to about £25,000, for behoof of James Mackie, described as a natural son of the truster, nine years old at the time of his death.

In February 1895 Mrs Mary Rae or Rooney, the sole next-of-kin of the said James Rae, and Janet Rae, his niece and heir-at-law, brought an action of reduction against the said J. F. Cormack and the said James Mackie (to whom a curator ad litem was subsequently appointed) for the purpose of having the said trust-disposition and settlement set aside.

The pursuers averred, inter alia, that the late James Rae was subject to fits of depression and at times gave way to drink, that his death was accelerated by his intemperate habits, that at the date when the said pretended trust-disposition and settlement was executed he was weak and facile in mind and easily imposed upon, and that the said

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trust-disposition and settlement was impetrated from him by the defender Cormack by fraud and circumvention. They further averred—“The defender Cormack expected that, if a will were executed in favour of James Mackie, who was in minority at the time, and in the manner expressed in the said trust-disposition and settlement, he would derive large benefit from having the entire management of the estate in his own hands, at all events until the period prescribed in the will, when the said James Mackie, if he survived, was entitled to a conveyance thereof. The said defender Cormack was the law-agent and confidential legal adviser of the deceased James Rae, and as such possessed a strong influence over him. The said defender on the day of the execution of said trust-disposition and settlement took undue advantage of his position as law-agent and confidential adviser aforesaid, and of Mr Rae's weakness and facility and his inability to resist the undue influence brought to bear on him by the said defender, to impetrate from the said Mr Rae the said trust-disposition and settlement embodying, inter alia, a provision of £500 in his own favour and the other provisions which the defender believed would further his future business interests. The whole of the material provisions of the said trust-disposition and settlement were forced on the deceased by the said John Ford Cormack, and the signature to the said deed was procured by the said defender all by the exercise of the undue influence aforesaid and contrary to the true intentions and wishes of the deceased regarding the disposition of his estate after his death.”

The pursuers pleaded, inter alia—“(1) The said pretended trust-disposition and settlement having been impetrated from the said deceased James Rae while he was weak and facile in mind and easily imposed on, by the said John Ford Cormack, by fraud and circumvention, and by taking advantage of the said weakness and facility, to the lesion of the said James Rae and the pursuers, the same should be reduced. (2) The said pretended trust-disposition and settlement having been obtained from the said James Rae through undue influence on the part of the defender John Ford Cormack, his legal adviser, ought to be reduced.”

They submitted the following issues:—“1. Whether the pretended trust-disposition and settlement, dated 27th January 1894, No. 9 of process, is not the deed of the late James Rae? 2. Whether on or about 27th January 1894 the late James Rae was weak and facile in mind and easily imposed upon; and whether the defender John Ford Cormack, taking advantage of his said weakness and facility, did by fraud or circumvention impetrate from him the said trust-disposition and settlement, to the lesion of the said James Rae? 3. Whether on or about 27th January 1894 the defender John Ford Cormack was the law-agent and confidential legal adviser of the said James Rae; and whether the said John Ford Cormack, taking advantage of his position as such, did by undue influence procure the said trust disposition and settlement to his own benefit, and to the lesion of the said James Rae?”

Upon 7th June 1895 the Lord Ordinary ( Stormonth Darling) allowed the 1st and 2nd issues and disallowed the 3rd.

The pursuers reclaimed, and argued—Although a separate issue of “undue influence” was not usually allowed, the relation of agent and client, which was the one here, made such an issue appropriate. A law-agent might use his position as agent so as to exercise undue influence, although he might not have had recourse to the arts of circumvention. A jury might affirm that he had abused his position, although unwilling to find fraud or circumvention— Harris v. Robertson, February 16, 1864, 2 Macph. 664, was in point. The recent case of M'Callum was not one of agent and client—See opinions in Anstruther v. Wilkie, January 31, 1856, 18 D. 405 (Lord Justice-Clerk, p. 416); Munro v. Strain, February 14, 1874, 1 R. 522; Cleland v. Morrison, November 9, 1878, 6 R. 156; Gray v. Binny, December 5, 1879, 7 R. 332. The pursuers were entitled to an issue which would enable them to bring in the rule of law that the onus lay upon a law agent, who took a deed in his favour from a client, of showing that he did not obtain it through his position of law-agent— Grieve v. Cunningham, December 17, 1869, 8 R. 317. If the deed was to be reduced in respect of the legacy to Cormack, it must be reduced in toto; there was no case in the books of partial reduction although that was known in England.

Argued for the defender, Cormack—There were no statements here justifying a separate issue of “undue influence.” The case was merely one of alleged fraud or circumvention, and was ruled by M'Callum v. Graham, May 30, 1894, 21 R. 824. Harris was the only case which could be quoted in favour of the pursuer's contention, but it was quite different, being a case of contract.

Argued for the curator- ad-litem—Cormack was not Maekie's agent; therefore even if the will were set aside, it could only be quoad the legacy to him. It was not for Mackie's interest that an issue of “undue influence” should be allowed, as it might imperil the provisions in his favour.

At advising—