Rooney v Cormack
| Jurisdiction | Scotland |
| Judgment Date | 18 October 1895 |
| Docket Number | No. 4. |
| Date | 18 October 1895 |
| Court | Court of Session (Inner House - First Division) |
Lord President, Lord M'Laren, Lord Adam, Lord Kinnear.
Expenses—Separate defences—Liability of defenders inter se—Trust.—
A law-agent was appointed sole trustee, and was left a legacy under the will of a client, which the law-agent had himself prepared. An action for the reduction of the will was brought against (first) the law-agent, and (second) the residuary legatee, who was a pupil, and to whom a curator ad litem was appointed, on the ground that the first defender had by fraud or circumvention impetrated the will from the testator, who was weak and facile. Separate defences were lodged. The jury returned a verdict for both the defenders.
In dealing with expenses the Court found the pursuer liable to the first defender as trustee, and found the latter personally liable to the second defender, the curator ad litem, on the ground that his action in taking benefit under the will which he had himself prepared had so prejudiced the case that, but for the separate defence, the jury might have disregarded the pupil's interest, and returned a verdict for the pursuer.
(Previous report, June 22, 1895, 22 R. p. 761.)
On 17th February 1894, James Rae, Esquire, of Newton and Kirkpatrick, Dumfriesshire, died unmarried, leaving a trust-disposition and settlement dated 27th January 1894. By this deed he, inter alia, left an annuity of £200 to his sister and sole next of kin Mrs Mary Rae or Rooney, and £500 to John Ford Cormack, his solicitor and sole trustee who had prepared the deed, and he directed the latter to hold the residue of his estate (which amounted to about £25,000) for behoof of James Mackie, a natural son of the truster, until he attained twenty-five, and then convey it to him.
On 20th February 1895, Mrs Rooney and Janet Rae (the truster's niece and heir-at-law) raised an action of reduction of the settlement against Cormack and James Mackie (to whom a curator ad litem was subsequently appointed).
The defenders lodged separate defences, and were represented by different counsel and agents.
The trial took place on the following issues:—‘(1) Whether the pretended trust-disposition and settlement dated 27th January 1894, No. 9 of process, is not the deed of the late James Rae? (2) Whether on or about 27th January 1894 the late James Rae was weak and facile in mind and easily imposed upon; and whether the defender John Ford Cormack, taking advantage of his said weakness and facility, did by fraud...
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