Scottish Court of Session Decisions

Lord President—I am for deciding this question of expenses on the very exceptional circumstances of the case.

The issue of facility and circumvention which, owing to there being so many deeds, is repeated five times, puts the question whether this alleged testatrix was weak and facile in mind, and whether Mr William Horn Henderson, writer, Linlithgow, or any of the defenders, did by fraud and circumvention obtain the will. I must confess I think that form of issue, even apart from the record, is open to the grave objection that a charge of fraud and circumvention ought specifically to apply to individuals, and it appears to me most objectionable that without even asking the jury to single out any particular individual, they should be entitled to launch a verdict, as they have done here, against a set of people without saying which of them the verdict is aimed at.

But that peculiarity of the case derives special importance from a comparison of the issue with the record. The word defenders is so applied by the summons solely to the trustees. If we turn to the record we find that there is no charge of fraud against the trustees .at all, the charge of fraud is against Mr William Horn Henderson and members of his family, some of the family being “defenders” and some not.

After the adjustment of the issue this singular result follows, that the trustees who are not charged with fraud at all in the record are put into the issue along with Mr William Horn Henderson without any attempt to distinguish which of them had to do with the matter. I mention this because I think that such issues as these should not be used. But then this bears very directly on the question of expenses. The real truth is that the issue should not have been allowed at all, because there is no record to support it, but from the moment it was allowed the trustees were bound, being persons with characters to lose—(one of them the minister of the parish)—to go on and defend themselves, and we cannot say whether they have done so successfully or not. But in the present question they are quite entitled to say that they have, and Mr Watt and his clients, owing to their own fault, have not the means of gainsaying this contention of innocence. The logical result is that from the lodging of the issues the trustees are entitled to their expenses, but I am inclined to think that we must assume that the record justified the issues, and that the trustees were entitled to come forward from the first and defend themselves. Then again, Mr Watt makes no motion for expenses against the trustees. The reason of this, it is said, is that there is no conclusion for expenses against the trustees in the summons. I say that that proves conclusively that he had knowledge of their innocence from the first.

On these grounds I am for allowing the trustees their expenses, but I think it right to say that this case does not involve any finding generally to the effect that trustees who are not charged with fraud are entitled to try the case at the expense of the trust-estate, and should not rather go to the beneficiaries and say that they could not defend unless they were kept clear of expenses. I do not wish to say anything against that principle, which seems to apply to many cases, but I am decidedly of opinion that it does not apply to this.

Lord M'Laren—I agree with your Lordship in the chair as to the disposal of the question of expenses in the special circumstances of the case; and I also desire to reserve my opinion upon the more general question raised in the argument, which we are not called upon to decide. If a will is unsuccessfully defended by beneficiaries claiming under it, those beneficiaries would be liable in expenses upon the general ground that the pursuer is entitled to be indemnified for the costs which he has incurred in vindicating his rights, and I do not see why a pursuer is to lose his expenses because the defenders put forward parties to contest his right in their interest. Accordingly it is only, as it seems to me, by reason of some peculiarity in the case that trustees can be entitled to receive their expenses if unsuccessful. In the present case the beneficiaries were not even called as proper defenders but only as parties for their interest. The pursuer of the action has not taken the means open to him of compelling them to come into court, but has chosen to raise his action against the trustees, and has put the trustees into the position of being subjected to a general charge of fraud and circumvention. I think the pursuer in the circumstances cannot complain that the trustees came forward and defended the action.

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