Johnston v Goodlet
| Jurisdiction | Scotland |
| Judgment Date | 16 July 1868 |
| Date | 16 July 1868 |
| Docket Number | No. 185 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. I.
Obligation—Undue Influence—Proof.—
MR GOODLET, the defender, married a daughter of Mr Andrew Johnston. Mr Johnston died on 25th October 1854 leaving surviving children—viz. James Johnston and Margaret Johnston, the pursuers; Mrs Goodlet and Mrs Hunter.
Mr Johnston senior left a trust-deed, by which he appointed the pursuers and Mr Goodlet to be his trustees. Mrs Goodlet died ten days after her father, on 5th November 1854, intestate, and without issue.
On the 16th January 1855 the pursuers and Mrs Hunter executed a deed of discharge and renunciation in favour of the defender in these terms:—‘Considering that our sister, Mrs Eliza Johnston or Goodlet, was several years ago married to William Goodlet, … and that our said sister died on 5th November last, intestate, and without issue; and considering that there was no contract of marriage between our said sister and the said William Goodlet, whereby, and by her not having made any settlement, we became entitled to one-half of the whole free moveable or personal estate which formed the communio bonorum between them, and that as the next of kin and executors of the said Mrs Eliza Johnston or Goodlet, our sister; and considering further, that at a meeting between us and the said William Goodlet, held at Letham Mains on 4th December 1854, we expressed our intention and resolution not to take any benefit from this right, out to leave the said William Goodlet to enjoy and use the whole of the goods which were in communion between him and his said late wife, in the same way as if she had made a settlement in his favour; and that, in terms of our request, the present formal deed has been prepared for carrying our said intention and resolution into effect: Therefore we, as executors and as next of kin of the said deceased Mrs Eliza Johnston or Goodlet, our sister, and as individuals, do hereby, for ourselves, and our respective executors and successors, discharge the said William Goodlet, now in possession of the whole of the said goods in communion, of our right to one-half thereof, or other interest therein, with all that has followed or could competently follow thereupon; and we hereby renounce and make over to the said William Goodlet the one-half thereof which belongs to us, as in right of his late wife, our sister, to be by him used and enjoyed as his own absolute property, freed and released from every right or claim on our part, and that in the same way and as fully and freely as his own half thereof; and we discharge him, and his heirs, executors, and successors, of all claims for accounting or payment connected therewith, now and in all time coming,—he, the said William Goodlet, freeing and relieving us of any duties to Government, or expenses or other liabilities in any way connected with the affairs or succession of our said late sister.’
Mr Goodlet having married again, the pursuers, in 1867, raised this action of reduction of the discharge and renunciation, or alternatively for declarator ‘that the defender, at or about the time when the said discharge and renunciation was executed, entered into an agreement with the pursuers and the said Mrs Jessie Johnston or Hunter, whereby, in consideration of obtaining the said deed of discharge, he bound and obliged himself to dispone, convey, and make over by an irrevocable deed, to and in favour of the children of the male pursuer, the fee of the share to which his wife had succeeded on the death of her father, the late Andrew Johnston, farmer, Westfield, East Lothian, and which, along with the other goods in communion, the pursuers and the said Mrs Hunter renounced in his favour by the said deed, reserving to himself his liferent of the said share only: And it having been so found and declared, the defender ought and should be decerned and ordained, by decree foresaid, in implement of the agreement and obligation foresaid, to dispone, convey, and make over the amount of the said share to himself in liferent, for his liferent use allenarly, and to the children of the male pursuer in fee; or to convey and make over the amount or value of the said share to trustees for behoof of himself in liferent, and of the said children of the male pursuer in fee, as aforesaid;’ and failing his doing so, the summons concluded for decree for £3000 as damages.
The pursuers pleaded;—(1) The defender having been an acting trustee under the trust-deed and settlement libelled, was not entitled, in the circumstances above set forth, to take from the beneficiaries the gratuitous conveyance to part of the trust-estate now brought under reduction, as the interests of the pursuers were not duly protected in the transaction; and the transaction cannot be supported in law. (2) The deed in question should be reduced, because it was executed by the pursuers while under essential error as to its legal effect. (3) The defender having wrongfully failed to fulfil his part of the agreement, out of which the deed under reduction arose, cannot maintain or found on it to any effect, and is bound to account, as concluded for. (4) Even if the deed could be supported, the defender is bound, in terms of his agreement with the pursuers, to execute an irrevocable deed securing to the family of the male pursuer, after his death, the property which is conveyed by it; and failing thereof, he is liable in damages, in terms of the conclusions of the summons.
In support of these pleas the pursuers averred,—(Cond. 8) ‘In this state of matters the defender … made a request to the pursuers and Mrs Hunter, that an arrangement of the following kind should be entered into, viz.:—That they should allow him to retain, during his life, his deceased wife's share of the...
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