Trustees. Dec. 20, 1911. She demanded various sums at different times as remuneration for additional trouble in nursing him during his frequent heart attacks Horsburgh v. Thomson's and obtained these sums by threatening to go away and leave him to strangers. He was pliable in her hands, and was unable to resist any suggestion she made, and she prevented him seeing his other relatives, or at any rate the pursuer and her brothers and sisters. On several occasions Mrs Campbell applied for her own use, without her father's knowledge, sums of money belonging to him. Mrs Watson, who was aware of Mrs Campbell's actings, was given a portion of these monies to ensure her silence. The deceased, in his younger days, was particularly careful of money, indeed miserly, but for years before his death, and in particular at and prior to the date of the deeds sought to be reduced, he was quite unable to look after money or appreciate its value. Mrs Campbell in particular taking advantage of the said John Thomson's facility, got into her possession the money which the said John Thomson had deposited with the Dundee Savings Bank or other Dundee bank, and applied it for her own purposes. She also, without his knowledge or consent, collected and applied to her own use a sum of money due to him by the tenants of his Melville House property. The said John Thomson, during the last five or six years of his life, owing to old age, weakness, and facility, was in a condition to be influenced by anyone who desired to take advantage of his facility, and the pursuer avers that Mrs Campbell, taking advantage of the deceased's weakness and facility, on or about 1st October 1907, induced him to delete from his last will and testament the said clause in favour of the children of any predeceasing parent, and to execute the said pretended withdrawal, and the said pretended codicil in favour of the defenders Mrs Campbell, Mrs Watson, and Mr John Thomson, when he was in such a condition physically and mentally as not to be able to resist Mrs Campbell's influence and the pressure which she brought to bear on the deceased to make the foresaid deletion and to execute the deeds under reduction. The said Mrs Watson and Mrs Campbell are and have been on terms of great intimacy for some years, although formerly they were otherwise, and it is averred that they decided to have the pursuer and her brothers and sisters disinherited, being influenced through greed and a desire to hurt the pursuer and her brothers and sisters, towards whom they had conceived an ill-will. The pursuer further avers that the pretended codicil of 19th January 1901, and the pretended codicil dealing with the ground in the Western Cemetery, were similarly procured by the said Mrs Campbell at a time when the said John Thomson was incapable of appreciating their import and effect, or executing them, and in any event when he was weak and facile and easily imposed upon and circumvented by Mrs Campbell. In these circumstances the deletion and withdrawal in said last will and testament, and the said three pretended codicils, all under reduction, were impetrated from the deceased by the defender Mrs Campbell by fraud or circumvention when he was weak and facile, and this action has accordingly been rendered necessary." The pursuer pleaded;—(1) The said pretended deletion and withdrawal in said last will and testament and the said three pretended codicils not being the deeds of the deceased John Thomson, decree of reduction should be pronounced as craved. (2) The said pretended deletion and withdrawal, and the said three pretended codicils having been impetrated from the deceased John Thomson by the defender Mrs Campbell by fraud or circumvention, when the said deceased was Dec. 20, 1911. weak and facile and easily imposed on, the pursuer is entitled to Horsburgh v. decree of reduction as craved. Thomson's Separate defences were lodged for Mrs Campbell and for the other Trustees. defenders. In her defences Mrs Campbell pleaded, inter alia ;—(2) The pursuer's averments of facility and circumvention are irrelevant and wanting in specification, and ought not to be remitted to probation. On 7th December 1911 the Lord Ordinary (Ormidale) repelled, inter alia, the plea for Mrs Campbell above quoted, and approved of issues for the trial of the cause. By this interlocutor the Lord Ordinary allowed six issues, the first three of which were as to whether the writings in question were not the deeds of the testator, and the last three were whether they had been obtained by fraud and circumvention. * "OPINION.-In my judgment the averments contained in cond. 5 are clearly relevant to infer that the deceased Mr Thomson was not of sound disposing mind at the dates of the writings which are sought to be reduced. "With regard to the questions raised by issues 4, 5, and 6 [being those upon the plea of facility, fraud, and circumvention], it was not disputed by defenders' counsel that weakness and facility were relevantly averred, and I think it must be taken from all that is said about her and her relations to her father that the defender Mrs Campbell had very great influence with and over her father. That fact of itself does not raise any presumption against the fair dealing of Mrs Campbell. It was only natural that she should have such influence and that he should repose very great confidence in her, and it was quite proper, if not necessary in the circumstances, that she should take into her own hands the entire management of the household affairs. But it is averred—I give the substance of the averment-that she abused the confidence of her father and that she appropriated to her own use, more than once, sums of money which she had no right to take, and that she bribed her sister to hold her tongue with regard to these delinquencies. The averments may be absolutely untrue, but I am bound at this stage of the proceedings to assume the contrary, and the incidents referred to must be taken as instructing at once the inability of the deceased to protect himself against his daughter, and of the readiness of the daughter, when she had a purpose to serve, to take advantage of her father's weakened state of health. "It was maintained, however, by the defenders that there was nothing said on record to connect any instance of Mrs Campbell's alleged abuse of her father's trust in her with the impetration of the writings sought to be reduced. There is much force in this contention, and it is, I think, literally correct, but at the same time I should, in my opinion, be reading the record too strictly if I were to give effect to it. The averments of impetration in cond. 5 and cond. 6, though expressed in general terms, are just the accustomed averments made in cases like the present, and they must not be dissociated from the setting in which they are found. Regarding and reading them in the light of the other averments in the record, I am bound on the authority of the cases cited at the Bar-inter alia, Rooney, 22 R. 761; Williams v. Philip, 15 S. L. T. 396—to hold that there is sufficient matter to found an issue of facility and circumvention. There is an averbent of motive, and the statements as to what Mr Thomson said to the pursuer's mother about not worrying about money matters as he had provided for her children, and the denial by Mrs Campbell to his grandchildren of access to their grandfather's room, go some way to meet what seems to me otherwise a well-founded argument of the defenders on the terms of the writings themselves. "As regards the absence of any specific averment of the arts and wiles Dec. 20, 1911. Horsburgh v. The defenders reclaimed, and the case was heard before the First Division (consisting of the Lord President, Lord Dundas, and Lord Johnston) on 20th December 1911. Argued for the reclaimers ;-The reclaimers challenged the allowance of the issues of fraud and circumvention on the ground that there were no averments on record which were relevant to connect Mrs Campbell with the impetration of the writings in question. The averment in article 6 was in words of style only, and was lacking in specification. If the pursuer did not aver facts and circumstances regarding the manner and occasion of the alleged impetration, she must, at least, aver undue influence acquired and an unnatural deed resulting.1 The test in such a case was whether the deed was such that only persuasion working on a facile mind could have brought it about. No undue influence was to be deduced from the fact that this widowed daughter lived with and took entire charge of her aged father during his declining years-a relationship that was natural and normal. In the circumstances the averments did not show an undue favouring of Mrs Campbell (whose own issue would have been excluded had she predeceased), much less that the testator's provisions were unnatural. It was not unnatural for a grandparent to exclude grandchildren for the benefit of his own children. Apart from the bald averment of impetration what was said against Mrs Campbell amounted, at the highest, to this, that she had abused the position in which she was placed by her father to the extent of not allowing his grandchildren to see him. The cases cited by the Lord Ordinary 2 were distinguishable. In both of these there were specific averments of the circumstances of the impetration that were awanting here. Counsel for the respondent were not called upon to reply. LORD PRESIDENT.-I have no doubt that the Lord Ordinary is right, indeed I think the whole of the reclaimers' argument was only made possible by the confusion of two questions, the question of what is a relevant averment and the question of what the pursuer must prove in order to succeed in the action. I do not know what the pursuer could have averred beyond saying that the testator was in a weak and facile state of mind. She must prove that before she goes any further, and if she does not prove that her case goes. Having proved that, she must proceed to show that some particular person impetrated the deed. She has stated that this was done by Mrs practised by the defender, the case of Clunie, 17 D. 15, warrants the view that precise details of the mode of circumvention are not required. Much must of course depend on the circumstances of each particular case. Here it may be noted that the writings are all holograph of the deceased, and the assistance of an agent was not therefore required for their execution, and the locus of the impetration was the deceased's room from which he was unable to move. On the whole matter it seems to me that it would not be safe to dispose of the question of facility and circumvention without inquiry, and I see no reason for not following the usual course and sending the case to a jury. I shall therefore approve of the issues proposed by the pursuer." 1 Clunie v. Stirling, (1854) 17 D. 15; M'Kechnie v. M'Kechnie's Trustees, 1908 S. C. 93. 2 Rooney v. Cormack, (1895) 22 R. 761; Williams v. Philip, (1907) 15 S. L. T. 396. Campbell, and I do not see what more she could be expected to aver. A Dec. 20, 1911. great point has been made by the defenders that anyone could make Horsburgh v. such a statement. That is quite true, but such a statement would only Thomson's carry a pursuer the length of a proof and no further. Trustees. After all, I do not think that it can be said, in fairness to the pursuer, Ld. President. that her averments are so bald as they were argued to be, because you cannot dissociate the statement in cond. 6 from what I may call its setting as set forth in cond. 5. I wish to say very little on this point, and I am far from saying that that setting would necessarily lead to a conclusion that is inimical to the defenders. It is just one of those settings which it is for a jury to consider, and to say whether it does or does not give rise to the imputed suspicions. I think this is a case that may perfectly well be, tried under the recognised issues that have been allowed here. LORD DUNDAS and LORD JOHNSTON concurred. THE COURT adhered. COWAN & STEWART, S.S.C.-BUCHAN & BUCHAN, S.S.C.-ALEX. MORISON & Co., W.S. Agents. JOHN SWAN AND ANOTHER (Matthew Swan's Trustees), First Parties.-J. M. Hunter. ROBERT SWAN AND OTHERS, Second, Fourth, Sixth, and Eighth Parties.-MacRobert. DAVID BEGG AND OTHERS, Third, Fifth, Seventh, and Ninth Parties.-Chree-H. P. Macmillan. Succession-Vesting-Payment at the age of twenty-five after expiry of liferent-Declaration referring vesting to "period of payment"-AccretionChildren “then surviving" and their issue-Issue of predeceasing children. A testator by his settlement directed his trustees to divide his estate into shares and to hold the shares for his children, and their respective spouses, in liferent, and for their respective children in fee. It was declared that the shares of any of his children dying without leaving issue should accresce "to my other children then surviving in liferent and to their respective issue in fee"; that the shares should not be paid to any of the fiars until they attained the age of twenty-five; and that the fee should not vest until "the period of payment " arrived. Held (1) that no right in a share of the estate, whether original or accrescing, vested in a grandchild until he attained the age of twentyfive and the liferents of his parents terminated; and (2) that under the clause of accretion the share of one of the testator's children who died without issue passed to the other children alive at her death in liferent, and to their issue in fee, to the exclusion of the issue of children then dead. Process-Special Case-Competency-Insane party— Curator ad litem- Where the curator ad litem to one of the parties to a special case re- S No. 47. Dec. 21, 1911. Swan's Dec. 21, 1911. MATTHEW SWAN, baker, Paisley, died in 1890 leaving a trust-disposition and settlement and codicil thereto, by which he conveyed his whole estate to trustees. Swan's 2D DIVISION. By this trust-disposition and settlement he conferred upon his wife the liferent of his whole estate, and provided as follows:-"I direct my trustees to divide the residue of my estate, heritable and moveable, into seven [which was changed by the codicil to 'eight'] equal shares, and (first) to invest and hold one share thereof for the liferent use allenarly of my son Robert Swan, and thereafter for the liferent use allenarly of any wife he may marry, but that so long only as she remains his widow, and to his children equally share and share alike in fee; (second)-[Here followed six purposes in which a share was conferred on each of his other children (except his son Matthew) and their respective spouses in liferent, and on their issue in fee, in the same terms as in the above purpose. By the codicil a share in the same terms was given to Matthew, his wife, and his children.]—and I hereby provide and declare that in the event of any of my said sons and daughters who are beneficiaries under these presents dying without leaving lawful issue, the fee of their shares shall fall and accresce to my other children then surviving in liferent, and to their respective issue in fee, providing and declaring also that the fee of my estates shall not be paid to any of the fiars until they attain the age of twenty-five years, but my trustees may apply the annual income arising from any fiar's share after the liferents thereof are satisfied for the maintenance and education of any such fiar until they arrive at that age; and further, providing and declaring that the fee of my estates shall not vest in any of my beneficiaries until the period of payment has arrived." The testator was survived by his wife, who died in 1910. He had the following eight children: Maggie (Mrs Robert M'Kechnie)) who both predeceased the testator, Agnes (Mrs John M'Kechnie), who survived the testator, but died Robert, Mary (Mrs Young) who were all alive at the date of this case, and Matthew, Maggie's husband predeceased Jessie; the husbands of Jeanie and Agnes were alive at the date of the case. Questions having arisen as to the construction of the trust-disposition and settlement and codicil, a special case was presented for the opinion and judgment of the Court. The first parties to the case were the testamentary trustees; the second parties were the testator's children who survived his daughter Jessie (Robert, Mary, John, and Matthew), their children, and the grandchildren of Mary; the third parties were the surviving husbands and descendants of the three deceased daughters Maggie, Jeanie, and Agnes; the fourth parties were the heirs of the testator's daughter Jessie; the fifth parties were the whole children and grandchildren, who were under the age of twenty-five, of the testator's children; the sixth parties were the surviving children of the testator's children Robert, Mary, John, and Matthew, and the children of deceased children of Mary |