Scottish Court of Session Decisions

Alexander Weir, Melbourne, Australia, and Mrs Ann Weir or Key, St Andrews,

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heir in heritage and next-of-kin of the deceased Miss Margaret Brown, who resided at New Grange House, St Andrews, raised an action of reduction against Stuart Grace, banker and solicitor, St Andrews, C. S. Grace, W.S., St Andrews, son of Stuart Grace, and certain other persons, legatees under the will, which was one of the documents sought to be reduced.

The summons sought for reduction in so far as regards any right which the defender Stuart Grace or the defender C. S. Grace could claim under them, of (1) a letter dated 5th March 1881 purporting to embody the testamentary directions of the said Miss Margaret Brown and her sister Miss Ann Brown, in the following terms:—“ New Grange, 5 th March 1881.—Dear Mr Grace,—My sister and myself thinks we should now make our will, and as you have been our kindest friend in giving us your good advice at all times, we both think we cannot do better than leave you at our deaths, New Grange, Mountville, the two cottages and gardens at East Grange, and the house No. 62 in South Street, St Andrews, and all that is in our possession at the time of our demise. We leave it solely to you, also all the furniture in our house, silver plate, jewellery, books, pictures, napery, crockery, and wearing apparel, &c. &c. We leave you sole executor with the exception of a few legacy's for you to pay out of the fund.— Margaret Brown.” Then followed legacies amounting in all to £5000. (2) A deed of settlement by Miss Margaret Brown dated 1st April 1881, with relative codicils dated respectively 15th June 1886 and 5th April 1893, whereby she conveyed all her property, heritable and moveable, to her sister Miss Ann Brown, and in case of her predecease (which happened) to the defender Stuart Grace and his heirs, under burden of the legacies, and appointed Miss Ann Brown, whom failing the defender Stuart Grace, whom also failing the defender C. S. Grace to be her executrix or executor; and (3) a testament-testamentar by the Sheriff of Fife and Kinross in favour of the defender Stuart Grace as executor-nominate of Miss Margaret Brown following upon the deed of settlement second sought to be reduced. Reduction was not sought of the letter or settlement in so far as the special legacies were concerned.

The pursuers pleaded—“(1) The said letter and the said deed of settlement by Miss Margaret Brown and the said confirmation ought to be reduced to the extent concluded for, with all that has followed thereon, in respect that the defender Stuart Grace being the confidential law-agent of Miss Margaret Brown at the dates thereof, and down at least to August 1895, took advantage wrongfully and improperly, and in violation of his duty as a law-agent and of his position and influence as such, to induce Miss Margaret Brown to grant the same to his, the defender's, advantage, and to the lesion of Miss Margaret Brown and the pursuers. (2) In respect said letter and provisions were procured from Miss Brown by said defender by undue influence, the same, with all that has followed thereon, ought to be reduced as concluded for. (3) The execution of said letter and provisions having been procured by the defender Stuart Grace in favour of himself and his son while acting as the law-agent for Miss Brown, without the deceased having the benefit of disinterested counsel and advice, the said defenders cannot be permitted to hold the benefit so obtained. (4) The said letter and provisions not being the deliberate, voluntary, and uninfluenced acts and deeds of the deceased, ought to be reduced with all that has followed thereon. (5) In the circumstances of the preparation of the said deed of settlement as condescended on, the onus of showing the provisions challenged to have been the deliberate and uninfluenced act of the deceased lies on the defenders.”

The defenders pleaded—“(2) The whole material averments of the pursuers being untrue, the defender is entitled to absolvitor.”

Proof was led before Lord Kincairney, which disclosed the following facts:—Miss Margaret Brown was born in 1813, her sister Miss Ann in 1818. For many years they lived together in a house called New Grange, about a mile from St Andrews. They were in easy though not in affluent circumstances, the estate of the survivor Miss Margaret Brown at her death in 1897 exceeding £20,000. They lived very simply; their life was uneventful but not secluded, and though of homely manners they were sensible and intelligent. There were several neighbours who called on them, and some friends who visited them. They had a brother, Robert Gibson Brown, who lived at Newport, and whom they occasionally visited down to his death in 1886. They had next to no intercourse with the pursuer Mrs Key or her family. Their most intimate friends and most frequent visitors were Mr Grace and his family. Mr Grace was born in 1823; his firm of Grace & Yule had been agents for the Misses Brown's father, and for many years he had been the most intimate friend of the ladies, and their adviser and the transacter for them of any legal business requiring attention. Among other pieces of business which he did for them was the preparation in 1869 of a mutual will in favour of the survivor, and the conduct of certain legal proceedings about the teinds of their property.

Mr Grace's account of the circumstances leading to the preparation of the will were as follows:—In March 1881 he called at New Grange and the Misses Brown handed him the letter dated 5th March above quoted, and requested him to make a will for them giving effect to the letter. He deponed that he told them that he could not make a will in his own favour, and recommended them to leave the money among their own relations, but that the ladies adhered to their determination, and Miss Ann suggested that if Mr Grace would not make the will, Hugh Lyon, S.S.C., Edinburgh, might be employed to do so. Mr Lyon was Mr Grace's Edinburgh correspondent, and had acted for the Misses Brown in their legal matters about the teinds of

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their property already mentioned. Mr Grace further deponed that at the request of the Misses Brown he agreed to see Mr Lyon on the subject, and in accordance with his promise he shortly afterwards called on Mr Lyon and mentioned the wish of the Misses Brown.

As a result of this interview two draft wills were prepared in Mr Lyon's office, the names of the legatees being left blank, and James Robertson, a clerk in the office, went down to New Grange, saw the Misses Brown, and filled up the blanks according to their instructions. When the deeds were extended and ready for execution, Mr Alexander C. Logan, W.S., another of Mr Lyon's clerks, went down to New Grange, read over the deeds to the Misses Brown and got them signed, the witnesses being himself and Jane Smith, a domestic servant at New Grange. Mr Robertson took back the wills to Edinburgh, and they were left in the custody of Mr Lyon.

Among the legacies left by the will was one to George Brown, the ladies' brother; whom failing to his wife. George Brown died in 1886, and it occurred to the ladies that they did not desire the legacy to him to pass to his widow. Mr C. S. Grace thereafter procured the wills from Mr Lyon, the legacy to Mrs Brown was revoked, and the wills were returned to Mr Lyon.

Miss Ann Brown died in 1888, and her will, which carried her estates to her sister, was recorded in the Sheriff Court Books of Cupar. Mr Lyon died in 1891, and on 19th November 1892 Messrs J. & C. S. Grace wrote Mr K. R. Maitland, W.S., who had succeeded to the business, intimating Miss Margaret Brown's wish to have her will sent to herself. This was done, and thereafter the will remained in her possession. On 6th April 1893 she revoked another legacy, having paid the amount of the legacy to the legatee.

Miss Margaret Brown died on 15th April 1897, and after her death the letter of instruction and the will were found in her repositories. On 7th July Stewart Grace was confirmed her executor. The present action was raised on 6th December.

On 13th July 1898 the Lord Ordinary pronounced the following interlocutor:—“Finds that the pursuers have not established any sufficient ground in law for reducing the documents sought to be set aside: Repels the reasons of reduction; sustains the defences; and assoilzies the defenders from the conclusions of the libel, and decerns.”

Note.—“The pursuers of this action of reduction of the settlement of Miss Margaret Brown are her cousins-german and sole next-of-kin, or at least are among her next-of-kin. The defender Mr Stuart Grace has for many years carried on business as a solicitor in St Andrews, and has acted as the law-agent and legal adviser of Miss Brown, and, when she was alive, of her sister Miss Ann Brown, for more than thirty years. Miss Brown died at the age of eighty-four on 15th April 1897. The settlement sought to be reduced was executed on 1st April 1881, and it appears from its testing clause to have been prepared in the office of Hugh Lyon, S.S.C., Edinburgh. It is a general settlement of Miss Brown's estate in favour of Mr Grace, under burden of payment of certain legacies. Reduction is asked only so far as regards the right conferred on Mr Grace or his son Charles Stuart Grace. It is, I think, very important to notice that the action concludes for reduction also of a letter dated 5th March 1881, addressed by Miss Brown, for herself and her sister Ann, to Mr Stuart Grace, which, so far as he is concerned, is in substantially the same terms as the settlement; so that the pursuers had to guard against the contingency of this letter being held to be testamentary, even if the settlement were reduced.

“No doubt has been suggested that Mr Stuart Grace, at the date of the will, stood in the relation of confidential legal adviser to Miss Brown, and the action therefore regards the validity of a settlement by a client in favour of her law-agent.

I think it may not be inconvenient to refer at the outset to the law applicable to such a deed, which I think has been fairly well settled. There is no doubt that the law regards such a deed with extreme suspicion, and, when it is prepared by the law-agent and beneficiary, with much disfavour. I understood the pursuers to contend that such a will is null, irrespective of the circumstances in which it was granted. They referred to Anstruther v. Wilkie, January 31, 1856, 18 D. 405, in which an agreement by a client to make a gift of £1000 to a law-agent for his services was reduced. Lords Wood and Cowan appear to have held it null, apart from the circumstances. The Lord Justice-Clerk held that it was extortionate. The judgment declared it to be null ‘in the circumstances.’ In Logan's Trustees v. Reid, June 13, 1885, 12 R. 1094, it was held, for the first time in this country, that a donation by a client to his agent, in circumstances which were not suspicious, was revocable even after the donor's death. From that judgment the Lord Justice-Clerk dissented. I think that if these cases apply, reduction in this case could not be resisted.

“But I think it settled that these cases do not apply, and that wills in favour of a law-agent are not in the position of donations during life; and that such a will is not null by our law, but only liable to rigorous scrutiny. See Huguenin v. Baseley, 1807, 1 Whyte &Tudor, 7th ed. p. 284. It seems, therefore, unnecessary to refer to the English cases about deeds inter vivos. I do not suppose that there is much difference between our law and the law of England on this point. We approach the matter somewhat differently. In England the rules seem to be— First, ‘That the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator;’ and second, ‘that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion

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of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased' — Fulton v. Andrew, 1875, L.R., 7 H.L. 448, per Lord Cairns (quoting B. Parke), p. 461. In Scotland a probative will must be attacked in an action of reduction, in which there is a primary or apparent onus probandi on the pursuer; but that appears to be a result from the mere form of procedure, and, at least in regard to wills of clients in favour of law-agents, there seems to be no substantial difference between the laws of Scotland and of England, either as to the onus probandi or the amount of the onus.

In the case of Park v. Olatt Sir John Nicholl states the law as to a will propounded by an agent in his own favour as follows:—‘The presumption and onus probandi are against the instrument, but the law does not render such an act invalid; the Court has only to require strict proof, and the onus of proof may be increased by circumstances, such as unbounded confidence in the drawer of the will, extreme debility of the testator, clandestinity, and other circumstances which may increase the presumption, even so much as to be conclusive against the instrument. In the absence, however, of any circumstances of this sort the demands of the law may be more easily satisfied.’

In a very recent case of this kind in the Probate Court, Lord Davey lays down the principle thus—‘Whenever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed’— Tyrell v. Painter [1894 Pro. Div. 151.

So far as I am aware there is only one case in our books of much importance on this precise point — Grieve v. Cunninghame, December 17, 1869, 8 Macph. 317. In that case the will was sustained, and the rule was stated by the Lord President, quoting and adopting the note to Lord Barcaple's interlocutor—‘It will always be upon the agent to show that the making of the settlement in his favour was the free and uninfluenced act of the testatrix, deliberately entertained and carried through with an entire knowledge of its effect’— Munro v. Strain, June 18, 1874, 1 R.1039, is really a case of facility and circumvention.

Turning now to the facts, what is most noticeable is that there are very few facts to be considered. The testatrix and her sister Ann, who died in 1888, were two maiden ladies who had lived together for many years in a house called the New Grange, about a mile from St Andrews. If not in affluent, they were at least in easy circumstances, and Miss Brown's estate at her death exceeded £20,000. They had, however, been brought up in a homely way, and apparently they always lived very simply, and I think it proved somewhat penuriously, at least it is impossible to say that they were liberal.

“It is said on record that they did not know how wealthy they were, and that they were kept in ignorance of their means. But of that I find no proof. Their life was quiet and uneventful, but, as I think, not solitary or secluded. There were several neighbours who were in the habit of calling on them, and they had some friends who visited them. They had a brother, Robert Gibson Brown, who lived at Newport, and whom they occasionally visited. He died in 1886. The Misses Brown had next to no intercourse with their cousin Mrs Key, who lived in St Andrews, or with her family. There is some evidence that the testatrix entertained a dislike to some of them, particularly to William Key. Apparently the Keys had gone rather down in position and Miss Brown had improved, and that may have been the reason, although a very bad one. There is no doubt that their most intimate friends and most frequent visitors were Mr Grace and his family. Mr Grace's acquaintance with them had apparently begun at Duloch, near Invorkeithing, a property belonging to a Mr Gibson, who had married another Miss Brown, and was a man of wealth, and for many years Mr Grace had been their most intimate friend, the transactor for them of any legal business requiring attention, and their adviser when they required advice, and he and his wife and son called on them very frequently. Among other pieces of business which he did for them was the preparation in 1869 of a mutual will in favour of the survivor, and the conduct of certain legal proceedings about the teinds of their property.

Miss Ann Brown was by a couple of years the younger of the two sisters. She died in 1880 at the age of seventy. The pursuers seem to endeavour to prove, I hardly know why, that Miss Brown, the testatrix, had the stronger will, and exercised some ascendancy over her sister. I think that is not proved, and it certainly would not aid the pursuers' case if it were. It is quite clearly proved that both the ladies, if of somewhat homely manners, were sensible and intelligent and in no way eccentric. The means of forming an opinion about Miss Ann Brown are not complete, because none of her letters are produced, but the letters of Miss Brown to the witness Mrs Auld (who seems to be in the habit of preserving her letters), and also Mr Grace's letters to her and her to him, have been produced, and I have certainly been impressed with Miss Brown's letters, and those of Mr Grace to her. Her spelling is defective, but her letters are well written and well composed, and are those of a sensible clear-headed woman, and Mr Grace's letters are such as a man of business would address to a woman whom he knew to be capable of understanding business matters. I should certainly lean to the opinion that in point of intelligence Miss Brown was above the average. The correspondence produces the impression that she was not a woman who

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would be easily hoodwinked or subjugated to the will of another.

The circumstances leading to the preparation of the will are told by Mr Grace. There is no other evidence, and no reason for doubting his. His account may be thus summarised. In March 1881 he called at New Grange, and the ladies then handed to him the letter dated 5th March, which is printed on record. It expresses the intention of the ladies to leave their estate to Mr Grace subject to the legacies. Perhaps it is itself testamentary, but that need not be considered. The ladies requested Mr Grace to make a will for them giving effect to the letter. He depones that he told them that he could not make a will in his own favour, and that he recommended them to leave their money among their own relations. He says the ladies adhered to their determination, and that Miss Ann suggested that if Mr Grace would not make the will, Mr Lyon, S.S.C., might be employed to do so, and Mr Grace says that he at their request agreed to see Mr Lyon on the subject. Mr Lyon was on very intimate terms with Mr Grace. He was related to Mr Grace's first wife, and was his regular Edinburgh correspondent. He had acted for the Misses Brown in their legal matters about the teinds of their property which have been mentioned.

“This letter is of great importance in this case in every aspect of it. The pursuers aver ‘That it is not the spontaneous production of Miss Margaret Brown. She was unlearned and unskilled in her expressions, engaged in written composition seldom and with difficulty, and was utterly ignorant of legal phraseology. The said letter was written to the dictation of or after a model furnished by defender Stuart Grace.’ The pursuers have not attempted te prove this averment. My own impression is that (apart from certain legal terms) the lady who wrote the letters which have been produced was fully competent to write this particular letter without any assistance, or at least with her sister's assistance. The word ‘demise’ and the term ‘sole executor’ perhaps attract attention, but it is not likely that the word ‘demise’ was dictated or suggested by a Scotch lawyer, and there is no reason for supposing that Miss Brown did not understand the meaning of ‘sole executor.’

“In accordance with the request of the Misses Brown and his promise to them, Mr Grace shortly afterwards called on Mr Lyon and mentioned the wish of the Misses Brown, and the two wills were accordingly prepared and executed. There is a good deal of evidence, and a good deal was said in the debate about the way in which these deeds were executed, and no doubt there may be discussion on these matters if the case goes further. My conclusions on the evidence as to this point are — (First) That neither Mr Robertson, who saw the Misses Brown and received their instructions, nor Mr Logan, who attended to the execution of the deeds, asked or received from Mr Grace any instructions at all. The evidence on this point may impress different people differently, but that is my impression; ( secondly) I think that the Misses Brown neither asked nor received any advice, legal or otherwise, about their settlement, unless it was from Mr Grace. It may be that they did not ask advice from anyone. Neither Mr Robertson nor Mr Logan advised them at all.

I cannot but think that it might have been better had Mr Grace not called on Mr Lyon about the wills. The ladies were quite competent to instruct Mr Lyon themselves. Further, it would have been better that the wills had been prepared by some agent less closely allied with Mr Grace than Mr Lyon was; and, lastly, it would have been much better had Mr Lyon (the matter being so delicate) taken the instructions of the ladies himself. At the same time, I think I am entitled to consider that the business could not have been entrusted to a more capable or honourable agent.

Mr Grace says that he resolved that he would thereafter have nothing to do with the wills, and would remain ignorant of all that took place about them; and I think he acted as far as possible on that resolution.

The wills were then left in the custody of Mr Lyon. The letter, as I understand, remained in the possession of the Misses Brown.

Among the legacies left by the wills was one to George Brown, the ladies' brother. The legacy was to him, whom failing, to his wife. The letter mentions George Brown only. George Brown died in 1886, and it occurred to the ladies that they did not desire the legacy to him to pass to his widow; but it seems that they were not sure whether that would be the effect of the will or not. The result was that the wills were procured from Mr Lyon, the legacy to Mrs Brown was revoked, and the wills were returned to Mr Lyon.

It may be noticed in passing that the Misses Brown had in contemplation the reduction of their brother's will, and that Mr Grace recommended them, if they thought of raising an action, to consult Mr Lyon, he himself being precluded from his connection with the will from acting or advising in that matter.

Miss Ann died in 1SS8, and apparently her will, which carried her estate to her sister, was recorded in the Sheriff Court Books at Cupar.

In March 1892 the wills were sent from the office of Maitland & Lyon, and thereafter remained in the possession of Miss Brown; and on 6th April 1893 she revoked another legacy—that to Miss Bogie—which had, I understand, been paid.

Miss Brown continued in good health until some weeks before her death, and, so far as appears, she continued in the possession of her faculties. Her last letter to Mrs Auld, dated 3rd January 1897, is written in her usual style, and the writing is fairly good considering her very advanced years. I observe that she says I have had a great many Christmas cards and kind wishes,

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which does not point to a life so secluded as the pursuers describe.

I think that these are the material circumstances which require consideration in determining this question. There are a number of other circumstances and details of more or less consequence, but it would extend this opinion unduly to mention and discuss them. There is a conflict of evidence as to some things which occurred after Miss Brown's death which I shall notice very shortly afterwards, but I do not think they require consideration just at present.

The first question is whether the will in question is to be regarded as prepared by the defender Mr Grace or not. On the face of it, and also in fact, it was not, but was prepared by an agent of repute in Edinburgh. Even taking it so, and supposing that the ladies had applied to Mr Lyon without saying anything to Mr Grace, I think there would still remain a strong presumption adverse to the will, and it would still be necessary to establish that the deed expressed Miss Brown's free and deliberate intention. But, considering Mr Grace's call on Mr Lyon, the intimate relations which subsisted between them, the fact that Mr Lyon did not himself see the ladies, and particularly the fact that the ladies received no advice from Mr Lyon's clerks, I have some difficulty in seeing that much difference is made in the law of the case by the intervention of Mr Lyon. No doubt the ladies had his protection, which was quite proper, but I am hardly prepared to dissent from the pursuers' contention that the deed must be Liken as if it had been prepared by Mr Grace. I by no means say that Mr Lyon was put forward as a cloak or blind to conceal the fact that the deed was truly the deed of Mr Grace. There is no direct proof of that, and I do not think it was the case.

But, conceding the view of the pursuers that this will must be taken as having been executed by Mr Grace as agent, is it not proved that it expresses the free and deliberate will of Miss Brown? In considering this question, the first thing to be considered is the letter of 5th March 1881. Did it express the free and deliberate will of the ladies? There is not a syllable of proof to the contrary. There is nothing to the contrary except suspicion. Suspicion of what? Is it suspicion that he influenced Miss Brown against her relations? That idea was repudiated at the debate, and there is no proof of it. There is no proof that Mr Grace dictated the letter or persuaded the ladies to write it. It is impossible to hold on mere grounds of suspicion that he did so.

Then the suggestion remains that he so insinuated himself into their good graces, and dominated their wills, and unduly, although indirectly, persuaded them contrary to his duty as their professional adviser. He advised and assisted them very frequently. It may not be going too far to say that he put them under obligation for many acts of attention and kindness, and that he obtained their friendship and their favour there is of course no doubt, but I find no proof that he did so by the exercise of arts or practices which the law prohibits. The law has not defined the degree of intimacy or friendship which may subsist between an agent and his client, only it is very jealous of that relation, and takes care that the client is not induced to act contrary to what might be otherwise supposed to be his natural inclination.

Now, in this case, it is true that the two ladies had relations who were not very distant. They had their brother, to whom a legacy of £1000 was left. It is explained that he was a man about their own age, without a family, and in no need of their money. There were the pursuers, their cousins, one resident abroad, the other in St Andrews, but, as has been explained, it is clear they had no favour for them. Mr Grace and his family were certainly their most intimate friends, and if they passed over these relations, it was natural enough that they should prefer Mr Grace.

I think that the letter was written without the intervention of Mr Grace. If so, it seems hard to say that the wills, which were the mere echo of the letter, were not. I am treating the letter just now, not as in itself testamentary, but as expressing in a manner not open to much suspicion the will of the testatrix. I do not see that there is or can be any doubt that the ladies fully understood the wills, or that the witnesses Robertson and Logan were satisfied. The wills are simple. They give effect to the letter, and the ladies were subject to no infirmity of body or of mind which could disable them from understanding them.

Another great peculiarity of this case is that the will was prepared sixteen years before the testatrix died, and it remained as the expression of her will during all that time. It was not in her possession until 1892, but she had occasion to reconsider it thrice;—(1) In June 1886, when she and her sister recalled the legacy to Mrs George Brown; (2) on the death of her sister; and (3) in 1893, when she revoked the legacy to Mrs Bogie. It cannot be suggested that she forgot her will, or that she thought she was not entitled to revoke it. On these two occasions in 1886 and 1893 she may be said to have confirmed it. It may be true that, if the will was originally impetrated by undue and illegal influence, the same influence which created it might preserve it. At the same time it does appear to me to be very difficult to say that if a testatrix remain of the same state of mind and will for sixteen years, that is not to be regarded as her free and deliberate will, but as a state of mind brought about by the undue influence of some-one else. I think it must be her own will, however it originated. It is impossible to hold the contrary, and I am satisfied that the letter and settlement under reduction are expressive of Miss Brown's free and deliberate will.

If they are expressive of her free and deliberate will, has the Court any right to say that her will shall not receive effect, and that her money shall go to persons whom she did not desire to benefit, because

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the legatee whom she selected to benefit was her law-agent? Apart from the right of the legatee, the testamentary rights of the testatrix have to be considered.

I do not go into the details of the case of Grieve v. Cunninghame. I think it bears a close resemblance to the present case, but I consider the case of Mr Cunninghame was very much weaker than that of the defender in this case, and in my opinion I could not grant decree of reduction consistently with the judgment in Grieve v. Cunninghame.

I regret the extreme length of the evidence in this case, and I think that the defender might safely have restricted his proof, although I must recognise that on account of the fulness of the disclosure expected from the defender, a proof in such a case cannot be short. There is also some conflict of evidence, which necessarily adds greatly to the length of a proof.

There is one somewhat curious point which I ought probably to notice. I do not see that it can directly affect the case although it bears on Mr Grace's good faith, I allude to an alleged conversation with Mr William Key at the gate of the cemetery after the funeral of Miss Brown, when Mr Key says that Mr Grace told him that there was no will. On that point I am satisfied that Mr William Key was mistaken. He seems to have been in a state of excitement, as appears from an intemperate letter which he wrote to Mr Grace, and he may have confused what was said by Mr Grace junior with what he supposed to have been said by Mr Grace senior. But it is a point about which Mr Grace could not have been mistaken, and I have no doubt that his account of the matter is correct.”

The pursuer reclaimed, and argued—The defender had not discharged the onus upon him of showing that the making of the will was the uninfluenced act of the testator, and that she had not been prejudiced by the fact that he was her law-agent and confidential adviser. The law was clear that wherever an agent received a substantial benefit from a client, whether by gift or will, a sine qua non to his enjoying that benefit was that he must show that the client had the benefit of independent advice, or at least had been placed in as good a position as if she had received independent advice. According to the authorities the Court must arrive at the conclusion that undue influence had been used, unless the giver or testator had been put into the same position as if she had been in the hands of an independent agent. It was not necessary that there should be moral blame on the part of the person benefited, the fact that there had been no independent advice was all sufficient. The agent was bound to see that his client was properly advised as to the consequence of her intended act— M'Phci'son's Trustees v. Watt, December 3, 1877, 5 R. (H.L.) 9; Gray v. Binny, December 5, 1879, 7 R. 332; Huguenin v. Baseley, 1807, 14 Vesey 273, 1 W. and T. Equity Cases, 247; Allcar v. Skinner, 1887, L.R., 36 Ch D 145; Parker v. Duncan, 1890, 62 L.T. 642. That being the law, it was clear from the circumstances of the present case that Miss Brown had had no independent advice. The ladies had been influenced by Mr Grace at the time of the letter—indeed, the letter itself was expressed in such terms as showed that the ladies must have had legal aid in concocting it. Then again, Mr Lyon was Mr Grace's Edinburgh correspondent, and had taken his instructions as to the preparation of the will from Mr Grace. Mr Lyon had never himself seen the ladies, and the clerk who went down to see them took down in his pocket a draft will with only the names of the legatees left blank, and had not given the ladies any advice on the subject. In these circumstances the matter was in the same position as if Mr Grace himself had written the will. The Lord Ordinary admitted as much, and in doing so had arrived at a right conclusion. But lie had gone wrong on the law. This was a strong case of its class. The ladies were in an extreme state of dependence on Mr Grace; they were old and he was their chief friend and their business adviser. The legal presumption must therefore be strongly enforced against him, and he had totally failed to show that the ladies when they made their wills had been placed in the same position as if they had been guided by neutrals.

Argued for defenders.—If the Court was of opinion that the legacy was the result of the free exercise of the testator's will they would not set it aside — Allcar, supra, opinion of Cotton, L.J., L.R., 36 Ch. 171; Parker, supra, close of Sir James Hannen's Charge to Jury, 62 L.J. 643. The evidence here clearly showed that Mr Grace had exercised no undue influence over the Misses Brown in the preparation of their wills, and that the wills were drawn up at their own desire and expressed their unbiassed intentions. It was not the case of a solitary testator. The ladies were intelligent, and would no doubt talk over the matter together. Mr Grace had no hand in the preparation of the letter of instructions, never having seen it till it was handed to him, and this was plain from the wording of the letter itself. Mr Lyon was not the tool of Mr Grace; he accepted employment as an independent agent, and acted as such in the preparation of the wills. Clerks had been sent down from his office both for the purpose of ascertaining the wishes of the ladies before the deed was prepared, and for the purpose of having the deed executed, and on both occasions it had been apparent that the ladies thoroughly understood and approved of what they were doing, This being the case the wills must be given effect to— Grieve v. Cunningham, December 17, 1869, 8 R. 317; Purfitt v. Lawless, 1872, L.R. 2 P. & D. 462.

At advising—