Scottish Court of Session Decisions

The Evidence (Scotland) Act 1852 (15 and 16 Vict. cap. 27), section 3, enacts—“It shall be competent to examine any witness who may be adduced in any action or proceeding as to whether he has on any specified occasion made a statement on any matter pertinent to the issue different from the evidence given by him in such action or proceeding; and it shall be competent in the course of such action or proceeding to adduce evidence to prove that such witness has made such different statement on the occasion specified.”

The Act of Sederunt for regulating proceedings in jury causes, of date 16th February 1841, enacts—section 17—“ Commission to Examine Witnesses who cannot be Present at the Trial — … The depositions taken on commission shall not be used if the witnesses so examined shall afterwards be brought forward at the trial.”

The Act 1681, c. 5, provides that “no witness shall subscribe as witness to any partie's subscription unless he … saw him subscribe, … or that the parties did at the time of the witnesses subscribing acknowledge his subscription…”

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. c. 94), sec. 39, enacts—“No deed, instrument, or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, … shall be deemed invalid or denied effect according to its legal import because of any informality of execution, but the burden of proving that such deed, instrument, or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on or objected to….”

On 14th November 1905 William Low or Forrest and David Low or Forrest, both residing in Massachusetts, U.S.A., raised an action of reduction and count, reckoning, and payment against, inter alios, James Guthrie, bank agent, Brechin, and David Spence, hairdresser and tobacconist there, as the trustees and executors of the late William Low, Montrose Street, Brechin. They sought reduction of Low's will on the grounds of (1) informality of execution, and (2) alleged fraud on the part of Mr Guthrie, and in any event a count, reckoning, and payment with a view to legitim.

A proof was taken.

The facts of the case and the import of the evidence are stated in the opinion ( infra) of the Lord Ordinary ( Johnston), who on 12th May 1906 granted decree of reduction on the ground that the testator's signature had not been witnessed by or acknowledged in the presence of one of the attesting witnesses.

Opinion.—“The late William Low of 32 Montrose Street, Brechin, who died at Brechin on 9th March 1893, had been married on 13th October 1843 to Margaret Etherington, otherwise Hetherington. Of this marriage there were born three sons — William, James, and David, the latter born 12th January 1850. In 1851 William Low was committed to the General Prison at Perth to undergo a sentence of twelve months for a violent assault. While he was still in prison his wife, to avoid his return, sailed for America with her three children in company with a certain William Forrest, with whom she afterwards lived in America as his wife. Her children by William Low were brought up under the name of Forrest, and continued to reside in America in ignorance of their true parentage and rightful name, though William, the eldest son, was aware from a confidential communication by his mother that Forrest was not their father or her husband, The true state of matters was accidentally discovered by David Low when on a visit to Scotland in 1904, eleven years after William Low's death. Mrs Margaret Etherington or Low, otherwise Forrest, died on 30th April 1880, thus predeceasing her husband William Low…. [ His Lordship here repelled a plea to the pursuers' title to sue, holding that they were proved to be the testator's sons.]

There are two grounds for reduction of William Low's settlement.

First, that the settlement was not validly executed by reason that Mrs Lyall, one of the instrumentary witnesses, neither saw the testator sign nor had his signature acknowledged to her by him.

Second, that the settlement was executed under essential error induced by Mr Guthrie, one of the residuary legatees, or

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otherwise was impetrated by him from the testator when the latter was in a state of facility by fraud and circumvention.

I shall deal separately with the first question, as it depends upon certain isolated facts which have no particular bearing upon the second and more circumstantial point.

William Low's settlement bears to have been executed on 24th January 1893, about seven weeks before his death, before these witnesses Jane Lyall and Helen Pearson Eaton, now Strachan. Low was at the time suffering from malignant tumour of the liver, of which he died, and though the witnesses differ as to whether he was entirely confined to bed, he was certainly in bed at the time of the execution. The settlement was not prepared by a law agent, but by Mr James Guthrie, banker, Brechin, who took on him to act as agent and to see to its due execution. With the alleged execution there were only three persons concerned besides Low himself, viz., Mr Guthrie, Mrs Lyall, and Helen Eaton, and they do not by any means agree as to the res gestæ.

Helen Eaton was the daughter of a friend of Low, who lived some way outside Brechin. She often called to inquire for and see Low. She had called on her way home, and was with Low on the 24th January 1893, when Mr Guthrie came in. She says that after a little conversation Mr Guthrie produced a deed and asked if Low would ‘be able to sign it now,’ which he said he would; that after Low signed, which he did raising himself in his bed, she signed next as a witness, and then Mr Guthrie suggested that they should get Mrs Lyall for the other witness. Mrs Lyall was a woman who lived with her husband, a labourer, on the same landing as Low, and during his illness principally attended to his wants. Accordingly, Helen Eaton says that she went for Mrs Lyall, but remained in Mrs Lyall's house till she came back. Helen Eaton, who was then twenty-six years of age, is clear that the will, for she knew it was a will, was not read over to Low before signature, but she states that after Mrs Lyall's return, and while in Mrs Lyall's house, she heard the sounds of reading issuing from Low's house, though the matter was not distinguishable, and she adds that there were pauses as if explanations were being given.

Mrs Lyall's statement is precise and emphatic that on going into Low's room she was asked or told by Mr Guthrie to append her name to a document which was lying on a table beside Low's bed, and that she did as Mr Guthrie bade her. She says that Low was lying flat on his bed and taking no apparent interest in what was going on, and that he did not speak or do anything by word or otherwise to acknowledge his signature or to request her to witness it. She did not know what the document was. She is also clear that the document was not read to Low in her presence. Having signed her name and added the word witness, though the latter fact she did not remember, she says that she left the room and returned to her own house.

On the other hand Mr Guthrie asserts that the will was read over by him to Low both before and after signing in presence of Helen Eaton, and that again parts of it were read over by him at the request of Low in presence of Mrs Lyall, and that he was most particular in making Low acknowledge his signature to Mrs Lyall before she signed as a witness.

Mr Guthrie is thus contradicted by both the instrumentary witnesses as to the reading of the will, and I have only his word against Mrs Lyall's that he obtained Low's acknowledgment to Mrs Lyall of his signature. I find, however, Mr Guthrie contradicted again at a most important subsequent juncture by both Mr and Mrs Lyall, regarding his call on them to obtain Mrs Lyall's signature to the declaration [ a declaration dated 2nd May 1893 by Mrs Lyall, setting forth her knowledge of Low sending for Guthrie, through Spence, in December 1892, with the intention of disposing of his property, and of Guthrie coming on the 5 th], or to a document in similar terms, and on this point I believe their testimony as they substantially agree in all particulars, and I cannot understand its being a fabrication. And there are other points on which I think the general accuracy of Mr Guthrie's recollection is doubtful.

It may be that Mr Guthrie, who is a man of education and versed in business, is right, but as I find Mr Guthrie's recollection not to be accurate in other matters, as is not surprising at this distance of time, I cannot on the faith of his sole evidence hold it proved against Mrs Lyall's clear and positive denial that Low acknowledged his signature to her. The most that can be said to be proved is that Low remained passive and did not take objection to her signing as witness to a document which he must have known was his will when she was asked to do so by Mr Guthrie. If consequently any miscarriage ensues it must be attributed to Mr Guthrie's injudicious employment of a witness of the class of Mrs Lyall to a will prepared under the peculiar circumstances which attended that of Mr Low.

It remains to consider what is the effect in law.

By the Act 1681, cap. 5, where an instrumentary witness does not see the granter of a deed adhibit his signature it is made essential that he shall ‘at the time of the witness subscribing acknowledge his subscription.’ It is not very easy to ascertain what precisely was determined in the case of Duff v. Earl of Fife, 2 W. & S. 167, where the subject was extensively canvassed, for I doubt whether the rubric where it uses the word ‘heard’ is justified by the judgment. But this much at least may be said, that the opinion of the Lord Chancellor, 2 W. & S. p. 211, clearly affirmed the necessity of an acknowledgment of the deed to the witness. But the matter was again considered in Cumming v. Skeoch's Trustees, 6 R. 963, and it was there determined that an express acknowledgment in words was not necessary to satisfy the statute, but that a clear and explicit though

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indirect and inferential acknowledgment, either in words or by acts, would be accepted. There was such indirect acknowledgment in Cumming's case but there was none such here, if the view of the evidence which I have found myself obliged to take is correct. And accordingly under the Act 1681, cap. 5, Low's will was not validly executed.

But that does not end the question, for the effect of the Conveyancing Act 1874, sec. 39, has to be considered. This statute was not pleaded in Cumming's case. But it is pleaded here, and by virtue of its provisions it is maintained that Mr Low's settlement, assuming its informality of execution, must receive effect according to its legal import, provided only that I am satisfied that it was de facto subscribed by the granter and the witnesses. I have carefully studied this statutory provision and the two authorities quoted which bear on its application, and I am unable to give effect to the above contention.

There were certain solemnities, statutory and otherwise, necessary prior to 1874 to the probativeness of a deed or of a testamentary settlement. These solemnities were formal, and attention to them or the reverse was necessarily patent on the face of the deed. But the Act 1681, cap. 5, provided regarding one of them something which went beneath the matter of form, and into the essentials of the execution. If a deed bore ex facie to be witnessed in the ordinary way by two witnesses, it was probative. But the Statute 1681, cap. 5, made it essential that an attesting witness should see the granter of the deed subscribe, or alternatively that the granter should ‘at the time of the witnesses subscribing acknowledge his subscription’ to the witness. Accordingly, a witness who subscribes without either seeing the granter subscribe or receiving an acknowledgment of his signature is not truly an attesting witness; yet though he is not truly an attesting witness, nevertheless the execution is formal and the deed probative—that is, as I understand, must receive effect until the vice of its execution is proved and the deed itself cut down.

The 38th section of the Conveyancing Act 1874 greatly reduces the solemnities of execution, but it does not touch that part of the Act of 1681, cap. 5, with which we are concerned. Accordingly it still remains the law, as stated by Lord Young in Geddes v. Reid ( 18 R. 1186), that ‘in order to the regular execution of a deed the granter's subscription must be adhibited or acknowledged in the presence of the attesting witnesses.’

But then the 39th section of the Conveyancing Act 1874 provides that no deed (1) Subscribed by the granter, and (2) bearing to be attested by two witnesses subscribing, shall be deemed invalid or denied effect according to its legal import because of any informality of execution, but the burden of proving that such deed so attested was subscribed by the granter and by the witnesses by whom such deed bears to be attested shall lie upon the party upholding the same. I have underlined certain words which appear to me to be essential to the scope of the enactment.

Now it is maintained that this provision covers the present case and enables the settlement of Mr Low to be set up by proof of the mere fact of subscription by the granter and by the witnesses, and reference is specially made to the case of Geddes above quoted.

My own opinion is that the objection to the validity of Mr Low's settlement is not one of the formality of the execution. There is no informality of execution. Everything is formally regular and regularly formal, and the deed is ex facie probative. The objection goes deeper and can only be disclosed on proof. I am confirmed in the view that the provisions of the 39th section were not intended to apply to any but patent informalities by the fact that the burden of proof in support of the deed is instantly put upon the party upholding it. It is assumed that it is ex facie informal and therefore improbative. Now, the contention of the defenders here, who are upholding the deed, involves that proof must be led before the alleged informality can be disclosed or the onus of proof be shifted on to their shoulders. It really comes to this, that in respect the deed in question bears to be attested by two witnesses subscribing, even assuming the pursuers to have proved that one of the witnesses neither saw the granter sign nor received an acknowledgment of his signature, it only follows that there is an informality of execution established, the consequence of which is that the onus is now placed upon them by the statute—but of proving what? First, that the deed so attested was subscribed by the granter, and Second, That the deed so attested was subscribed by the witnesses by whom it bears to be attested.

The defenders contend that this opens the door to them proving the subscription of the granter aliunde by comparison of handwriting, evidence of those who are not instrumentary witnesses, and by facts and circumstances, and they say that if they do that it is immaterial that one of the instrumentary witnesses, and if one then both, really attested nothing by their subscription, provided the genuineness of their own subscriptions is proved. This appears to me to—in effect—abolish the instrumentary witness altogether, and not merely the provision of the Act 1681, cap. 5, regarding the essential requisites to his attestation. It also appears to me to stultify the legislative enactment for what would have been the intelligent meaning of confining this means of curing the informality to those cases where the deed bore to be attested by two witnesses. Any deed at any distance of time can be made pro forma to bear to be so attested. Why then trouble about pro forma instrumentary witnesses at all, and not go straight to the proof aliunde of the signature of the granter? The answer is plain, I think, that the argument ignores the true meaning of the word ‘subscribed’ in the statutory phrase writ short thus, ‘that the burden of proving that such deed so attested was subscribed by the witnesses

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by whom such deed bears to be attested shall be upon the party upholding the same.’ Subscribed means, in my opinion, not merely manually signed, but subscribed in such circumstances as to make the subscription an attestation.

I have found it necessary to go into this matter in some detail, because I find that Lord Young in the case of Geddes above quoted expresses himself, though briefly, to the contrary. After the quotation which I have already given, viz., ‘the law still remains that in order to the regular execution of a deed the granter's subscription must be adhibited or acknowledged in the presence of attested witnesses,’ his Lordship adds, ‘If there is an omission of this formality it is not now fatal to the deed as formerly, but it puts upon the party using the deed and founding upon it the burden of proving the deed to be genuine.’ Lord Young's opinion is concurred in without qualification by the two other judges present, of whom one was Lord Rutherfurd Clark. It is true that a finding to the effect stated by Lord Young was not necessary to the determination of the case for there was failure to prove even aliunde the granter's signature. But I am bound to say that the interlocutor of the Court proceeds on the footing of Lord Young's doctrine being accepted. I can hardly, therefore, treat it as obiter merely. But as it was not necessary for the case I am, I think, justified in assuming that there was no considered judgment on the point.

But I do not find it necessary to proceed on my own view that the present case is not one of informality as expressed in the statute. It is enough that I accept Lord Gifford's statement in Tener's Trustees v. Tener's Trustees, 6 R. at page 1117. ‘It is difficult,’ his Lordship says, ‘to overestimate the importance of this provision. No informality whatever, no informality of execution—the words are universal—is to invalidate a deed, provided only the deed is subscribed by the granter and bears to be attested by two witnesses subscribing, and provided two things are proved, and they may be proved apparently at any time. The two things are, first, that the deed was signed by the granter, and second, that it was signed by the attesting witnesses, that is, that the subscribing witnesses really attested its subscription by seeing the granter subscribe, or receiving his acknowledgment of subscription.’ To the first part of this expression of Lord Gifford's opinion I should if necessary except. But the latter part, as I have already explained, I entirely adopt, and it is sufficient for my judgment. I shall therefore find that the settlement of the late William Low was invalid by reason that it was truly attested by only one witness.

But as my opinion may not be accepted by the Inner House I think it proper to exhaust the cause so far as the evidence is concerned, particularly as much of the evidence requires consideration in order to give effect to the judgment that I am prepared to pronounce.

The action is one for reduction of the settlement of the late William Low, and alternatively for an accounting with a view to payment of the pursuers' legitim.

The settlement is a simple one. It nominates and appoints James Guthrie and David Spence sole trustees and executors and residuary legatees, and bequeathes to them the testator's whole means, but subject to the payment of legacies amounting in all to £190.

The grounds of reduction as stated in condescendence 8 are—(1) essential error induced by the defender Guthrie as to the import and effect of the settlement. The essential error alleged is that the testator believed he was executing a testamentary conveyance in trust merely to these gentlemen, and did not know that he was giving them, and never intended to give them, a beneficial interest as residuary legatees. And (2) facility and circumvention.

In defence the plea of mora is stated, but I think it cannot be listened to in the circumstances. And here I take the opportunity of stating that I think the trustees were aware from the beginning, or at least were bound to have made themselves acquainted with what was a matter of common knowledge among the elder inhabitants of Brechin, that William Low had been married and had had children who had left the country with their mother, and that they, if they survived, would have interests antagonistic to the will.

As regards the allegation of facility and circumvention, while it must be admitted that Mr Guthrie has placed himself unfortunately and indiscreetly, though I have no doubt perfectly honestly, in a most equivocal position, there is no evidence of facility. Mr Low was suffering from a painful and mortal disease, one of the effects of which was distressing sleeplessness. But it is proved, I think, that he retained his faculties until the end.

But while I should be the last to throw any imputation on Mr Guthrie's honesty, and sympathise heartily with him in the unfortunate position into which his interference with matters, much better left to the lawyers, has brought him, I must take the facts as I find them, and draw the necessary deductions according to the rules which usually govern human conduct. And the first ground of reduction presents a question of very grave difficulty for Mr Guthrie to meet. Without being a lawyer he has placed himself in a very dubious position, by attempting to manipulate the matter of Mr Low's succession for him in an irregular and very incomprehensible way, and with a result which, on paper at least, produces a residuary benefit to himself.

The facts are these. After Mr Low had been for some time ill Mr Guthrie appears to have been sent for. Mr Low was possessed of two deposit-receipts for £250 each in the Royal and Clydesdale Banks

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respectively, and of a house, 32 Montrose Street, Brechin, valued for duty at £280, though probably not really worth quite so much. These receipts were cashed on 27th December 1892, and produced with interest £506. Mr Guthrie's explanation is that Mr Low wanted to have his settlement made, that, knowing himself to be dying, he was determined to give away without the publicity of a will a large portion of his means, partly because he would not have it known what friends he was favouring, and partly, I am persuaded, because he knew and did not conceal, that he had possible claimants on his succession to disappoint, and wished to disappoint them; part of his means he was, however, willing pro forma to put through the medium of a will, because destined to his relations and not merely to his friends in this country. Mr Guthrie states that Mr Low disposed of the proceeds of the deposit-receipts, all but £350, in a manner only known to himself, and as to which he made no communication to him, Mr Guthrie. The remaining £350, Mr Guthrie adds, was put by Mr Low's own hands in the beginning of January 1893 into a series of envelopes [ some produced], which Mr Guthrie had been directed to bring down, and which Mr Guthrie addressed on his instructions and endorsed with the amounts they respectively contained; some at least, if not all, of the legacies contained in the will were included in the above enclosures. These envelopes were put aside and retained by Mr Low for a fortnight, and were then, according to Mr Guthrie's account, handed to him on the ground that it was not safe for Mr Low to have such a large sum of money by him in his small house. But though Mr Guthrie alleges that Mr Low was express and determined that he was irrevocably parting with the sums contained in the envelopes, there is no suggestion of any indication to Mr Guthrie that they were to be made over by him at once, or anything to show that they were not placed with Mr Guthrie for safe custody merely and to be treated at Mr Low's death as legacies, whether included in the will or not so included. And so in fact they were treated, for they were not parted with by Mr Guthrie on his own showing until a considerable time after Mr Low's death, and even then not all at once. Now, I am of opinion that Mr Low had complete control of this money until his death, and that Mr Guthrie knew that he had, and would not have ventured to part with any of the envelopes until that event.

Then came the framing of the will, about the contents of which Mr Low showed considerable vacillation, and even in the act of signing, and after, so comported himself as to show that what he signed was not his will unless there were superinduced verbal communings attending it. … As for instance, the verbal indication that, after all, the instrumentary witness Helen Eaton was to get the house; and even taking Mr Guthrie's account of it, the incomprehensible transaction about Mr Spence and his interest. [ Guthrie, on the alleged instructions of the testator obtained a letter dated 11 th February 1893 from Spence promising to assign the latter's interest in the estate on payment of £15 to himself and £5 to his son.] As regards the residue, Mr Guthrie states that he and Mr Spence, and after the transaction above referred to as to Mr Spence's interest, he alone, was to get the residue, subject to any directions, verbal or otherwise, which Mr Low might subsequently give, though as Mr Low had calculated pretty closely in his division by envelopes and by will, there was, Mr Guthrie says, really nothing in it.

I think this is substantially the species facti with which I have to deal, though the complexion of much of the details which I need not dwell on has had considerable effect with me. On consideration I have formed the opinion—1st, That the sums enclosed by Mr Low in envelopes and handed to Mr Guthrie, so far as not included in the will, were not effectual donations or bequests, but formed part of Mr Low's succession at his death, and that as Mr Guthrie has intromitted with them he is liable to account to Mr Low's representatives.

2nd, That Mr Low's will so far as it bequeathes legacies to his relatives to the amount of £190, would have been valid and have received effect had the will itself been duly executed.

3rd, That the verbal statement that Helen Eaton was after all to get the house, which somehow Mr Guthrie has translated into a direction that she should get the liferent only, was invalid and ineffectual even if the will stands, unless Mr Guthrie is the beneficial residuary legatee. ( Hannah's Legatees v. Guthrie, 1738, M. 3837, and Forsyth's Trustees v. Maclean, 16 D. 343.) [ The fee of the house had subsequently been conveyed on payment of £110, which Guthrie stated just covered what he was out of pocket.]

4th, That the residuary bequest to Mr Guthrie himself cannot stand, and that the will, quoad that part of it, had it been otherwise valid, must have been reduced quoad the residue clause. The case is the converse of Rooney v. Cormack, 22 R. 761. Without going into details, my opinion is based on the view that Mr Guthrie has not discharged the onus which lay upon him of showing that a beneficial residuary bequest to him was the intention of the testator and his free and uninfluenced act, deliberately entertained and carried through with an entire knowledge of its effect. ( Grieve v. Cunningham, 8 Macph. 317.) I am not even satisfied that Mr Low knew that Mr Guthrie was appointed residuary legatee as well as trustee and executor, or if he did, that he understood that its effect was not merely to vest Mr Guthrie with a fiduciary title, but to confer on him a beneficial interest.

5th, that if the residuary bequest to Mr Guthrie is cutdown, the envelope enclosures, other than those which are included in the will as general legacies, and the verbal bequest of the house either in liferent or in fee to Helen Eaton, cannot be raised up as

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verbal bequests imposed on the conscience of the executor to the detriment of the legal representatives of the deceased— Forsyth's Trustees v. Maclean, above quoted. …”

The defenders reclaimed, and argued — The evidence of one witness (Lyall) was not enough to reduce a deed which was ex facie probative and duly tested. Lyall's evidence was directly contradicted by that of Guthrie, and Guthrie's evidence was in accordance with the probabilities of the case and surrounding facts and circumstances. The fact that Lyall added the word “witness” to her signature inferred that she was actually a witness. Thirteen years had elapsed since the date of her signature, and the evidence showed that her memory was defective. A deed ex facie duly and properly executed would not be easily impugned on the ground of alleged informalities of execution, for omnia prœsumuntur rite acta, and a mere non memini would not be sufficient—Bell's Prin., sec. 2229; Frank v. Franks (1795), M. 16,824, aff. 10th June 1809, 5 Pat. App. 278; Douglas Heron & Company v. Clerk (1787), M. 16,908; Cleland v. Cleland, December 15, 1838, 1 D. 254; Morrison v. Maclean's Trustees, February 27, 1862, 24 D. 625; Cumming v. Skeoch's Trustees, May 31, 1879, 6 R. 963, 16 S.L.R. 574. Under sec. 39 of the Conveyancing Act 1874 it was not essential that a witness should see the granter adhibit his signature or hear him acknowledge his signature. It was sufficient if proved that the granter actually signed — Geddes v. Reid, July 16, 1891, 18 R. 1186, 28 S.L.R. 879 (Lord Young's opinion). There was no case in the books where an ex facie duly executed will had been reduced on the sole testimony of one witness. The onus lay on the party impugning, not on the party supporting such a deed. The Lord Ordinary was wrong in holding that the onus lay on Guthrie. The onus lay on the pursuers, and they had not discharged it. The Lord Ordinary, in short, had looked at the case from the wrong standpoint. (2) The proof showed that the pursuers' averments as to fraud were baseless. Any benefit taken by Guthrie was trifling. Further, this was not a case of agent and client, and therefore the case of Logan's Trustees v. Reid, June 13, 1885, 12 R. 1094, 22 S.L.R. 744, relied on by the respondents, was not in point. The present case fell within the rules laid down in Fulton v. Andrew (1875), L.R., 7 Eng. and Ir. App. 448; Grieve v. Cumningham, December 17, 1869, 8 Macph. 317, 7 S.L.R. 196; and Weir v. Grace, November 28, 1899, 2 F. (H.L.) 30, 37 S.L.R. 626, to the effect that the drawer of a deed who was in a fiduciary position towards the testator was not barred from taking benefit under it provided he proved that he had acted honestly.

Argued for respondents—(1) The Lord Ordinary was right. The deed in question had not been duly executed. The Act of 1681, c. 5, was still binding, and therefore the informality here was fatal— Duff v. Fife, May 22, 1862, 2 W. & S. 166. Section 39 of the Act of 1874 (cited by the reclaimers) had not altered the rule. In using the word “witness” the Act meant witness in the proper sense of the term, i.e, one actually a witness. The Lord Ordinary was right in holding that in the circumstances of this case the onus of proving that the will was duly executed lay on Guthrie— Fulton, ut supra. This onus had not been discharged. The evidence of Lyall was corroborated by that of the witness Eaton, and both contradicted that of Guthrie. (2) The onus of proving absence of fraud also lay on Guthrie, seeing that he had really acted as the testator's law agent in preparing his will and had benefitted substantially under it— Logan, ut supra; Grieve, ut supra; Weir, ut supra. It was not necessary to prove fraud. If the testator had acted under essential error induced by Guthrie (as the respondents maintained) that was sufficient— M'Laurin v. Stafford, December 17, 1875, 3 R. 265, 13 S.L.R. 174. In any event, the deed fell to be reduced so far as Guthrie had actually benefitted under it— Huguenin v. Basely (1807), W. and T. L.C. i., 247, 14 Vesey 273.

During the discussion on the question of execution, counsel for the reclaimers proposed to read the deposition of the witness Lyall, which had been taken on commission (granted by the Lord Ordinary) to lie in retentis. He also proposed to read the report of the commission on the point. Lyall had subsequently appeared in Court and been examined as a witness, and it was to contradict her evidence in Court (and also her statement on a previous occasion) that counsel now proposed to read the deposition. Neither the report of the commission nor the deposition had been put in evidence, and in the Outer House the Lord Ordinary had refused to allow the deposition to be read. In supporting the motion counsel cited the Evidence Act of 1852 (15 and 16 Vict. c. 27), sec. 3, and referred to Emslie v. Alexander, December 20, 1862, 1 Macph. 209.

Counsel for respondents objected to the course proposed as incompetent, and referred to A.S., 16th February 1841, sec. 17.

The Court in refusing the motion delivered the following opinions:—