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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rooney v. Cormack [1895] ScotLR 33_7 (18 October 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0007.html
Cite as: [1895] SLR 33_7, [1895] ScotLR 33_7
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
v.
(Ante, vol. xxxii. p. 544—June 22nd 1895).
Facts:
An action was raised for the reduction of a will against the testamentary trustee, and against the residuary legatee, a pupil child, who was represented by a curator ad litem.
By the will a legacy was bequeathed to the first defender, who was sole trustee, and who had prepared the will as the confidential legal adviser of the testator.
The will was challenged on the ground that it had been obtained from the testator, who was weak and facile, by fraud and circumvention on the part of the first defender. The case went to trial, and the jury returned a verdict in favour of both defenders.
Held that the pursuer was liable in expenses to the first defender only, and that the latter was personally liable in expenses to the other defender, on the ground that he had prejudiced the
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case against him, and rendered a separate defence necessary, by his action in preparing as law-agent a will under which he took benefit.
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. P. Cormack, solicitor, Lockerbie, was sole trustee. By this 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, and who was 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 J. F. Cormack and James Mackie (to whom a curator ad litem, was subsequently appointed) for the purpose of having the trust—disposition and settlement set aside.
The action went to trial upon the two following issues:—“Whether the pretended trust-disposition and settlement, dated 27th January 1894, is not the deed of the late James Rae?” “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 and circumvention impetrate from him the said trust-disposition and settlement, to the lesion of the said James Rae?”
The jury found for the defenders on both of these issues.
The defenders on 18th October moved the Court to apply the verdict of the jury, and to find the pursuers liable in the expenses of both the defenders.
At advising—
Lord President—The jury have found for the defenders on both the issues, the first being—in the usual form—whether the deed in question was not the deed of Mr Rae, and the second being whether Mr Rae was weak and facile, and whether the defender, taking advantage of his weakness and facility, did, by fraud and circumvention, impetrate the deed from him. The pursuers accordingly have been found to be in the wrong, the Jury having held that the deed was the will of the testator and that it was honestly executed. The Court must therefore follow the ordinary rule and find the pursuers liable in expenses. But I do not think that they ought to be found liable in two sets of expenses, because in ordinary circumstances there would have been only a single defence, the trustee conducting it. But here, in the interests of the boy, it was in every way right that he should be separately represented, because the trustee, by his proceedings in connection with this will, had so prejudiced the case that the jury might have been apt, but for the separate representation of the boy, to disregard his interest, and, identifying the will with the trustee, to condemn both. The expense so occasioned was brought about by the action of Mr Cormack, and it appears to me that the proper solution of the question is that the pursuers should be found liable in the expenses of the trustee but not in the expenses of the boy, and that on the motion of the boy's curator ad litem we should find Mr Cormack liable in the expenses of the boy's separate defence.
I agree that the course proposed by your Lordship is reasonable and just.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel for the parties, on the defender's motion to apply the verdict, apply the verdict of the jury, and in respect thereof assoilzie the defenders from the conclusions of the action, and decern: Find the pursuers liable in expenses to the defender John Ford Cormack as trustee, and remit the account thereof to the Auditor to tax and to report; and on the motion of Alexander Wylie, curator ad litem to the residuary legatee James Mackie, find the said John Ford Cormack liable personally in expenses to the said curator ad litem, and remit the account thereof to the Auditor to tax as between agent and client and to report.”
Counsel for the Pursuers— Jameson— Salvesen. Agents— Fraser, Stodard, & Ballingall, W.S.
Counsel for the Defender Cormack— W. Campbell. Agents— J. & J. Galletly, s.s.c.
Counsel for the Curator ad litem— Hunter. Agent— Alexander Wylie, S.S.C.