Scottish Court of Session Decisions

On 20th October 1911 Mrs Isabella C. Galloway or Houston, wife of Robert Houston, joiner, Dunfermline, pursuer, brought an action against Isabella Aitken, Pannie Cottage, Kennoway, trustee and executrix of her (the pursuer's) father Edward Galloway, defender, in which she sought reduction of a settlement executed by him on 7th December 1909, which she averred the defender—who acted as his housekeeper—had by fraud and circumvention succeeded in impetrating from him.

The pursuer, inter alia, averred—“(Cond. 2) The late Edward Galloway, who was seventy-one years of age at the date of his death, was for many years an engineer in the service of the Egyptian Government and in receipt of a large salary.… While on duty in the Red Sea the said Edward Galloway suffered from sunstroke and had to leave Egypt sooner than he intended to do. For many years before his death he suffered from arterio sclerosis of the brain, and latterly softening of the brain.

… (Cond. 5) The said deceased Edward Galloway was subject to violent fits of passion. On one occasion he took possession of the defender's clothes and set them on fire. He frequently behaved in an outrageous fashion and indulged in alcoholic liquor to excess. A sister of the deceased's was confined in an asylum for twelve months on account of her mental condition, and David Galloway, a brother of deceased's, was a person of weak mind. A nephew of deceased (the son of a brother) is at present

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in an asylum.… (Cond. 6) For a number of years prior to his death the defender exercised a dominating influence over the deceased. About twelve years prior to his death deceased had a shock of paralysis, followed by a second shock four years afterwards. These shocks had a marked effect on the mind of the deceased, and for a number of years prior to his death he was mentally weak and easily influenced. For a period of about nine years prior to his death he was in a weak state of health and was intermittently confined to bed. For a period of at least two years prior to his death he was entirely under the control of the defender, who transacted all business for him and regulated his affairs. …”

She proposed the following issues—“(1) Whether the general disposition and settlement, dated 7th December 1909, is not the deed of Edward Galloway. (2) Whether on or about 7th December 1909 the said Edward Galloway was weak and facile in mind and easily imposed upon, and whether the defender Isabella Aitken, taking advantage of his said weakness and facility, did by fraud or circumvention impetrate from him the said general disposition and settlement, to the lesion of the said Edward Galloway.”

The defender pleaded, inter alia—“(1) The pursuer's statements being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed; and, in particular, the averments with regard to the mental condition of the deceased's relatives are irrelevant, and should be excluded from probation.”

On 19th December 1911 the Lord Ordinary ( Skerrington) appointed the passages in condescendence 5 (which are printed in italics) and the relative answer thereto to be deleted from the record, and approved of the proposed issues.

Opinion.—“This is an action for the reduction of a will in which the pursuer proposes the two ordinary and familiar issues. The defender's counsel moved that before approval of the issues the following passage should be deleted from article 5 of the pursuer's condescendence—‘… [ quotes passage in italics] …’ Evidence of this kind has been repeatedly disallowed in criminal cases, but it would appear from Dickson on Evidence, vol. i, sec. 3, where the whole authorities are collected, that the law is not so clear in regard to civil cases. I do not regard such evidence as necessarily irrelevant. An expert in insanity, who was familiar with the whole history of the various relatives of the testator who are referred to in the passage above quoted, might be able to draw the inference that the testator had a hereditary predisposition to insanity, and this conclusion, if correct, might help him to form an opinion on the further questions whether the testator had in fact become insane, and whether his insanity was of such a kind as to affect the validity of the will. The real reason for excluding such evidence is that its bearing upon the main issue is remote, and that it would be valueless, and indeed positively misleading, unless the inquiry as to the alleged mental disorder of the testator's relatives was conducted with the same care and minuteness as the inquiry into the alleged insanity of the testator himself. Life is not long enough to allow of an exhaustive inquiry into every side issue which has or may have a bearing upon the main issue. I accordingly appoint the passage to be deleted from the record.…”

The pursuer reclaimed, and craved leave to amend the record by adding to condescendence 6, in lieu of the passage in condescendence 5 which the Lord Ordinary had ordered to be deleted, the following averments—“Deceased's father had a sister Christina who suffered from mental disease, although she was not actually confined in an asylum. A sister of the deceased was confined in Springfield Asylum for seven months on account of her mental condition. She suffered from melancholia and strong suicidal impulses, and David Galloway, a brother of deceased, suffered from epileptic fits accompanied by mental derangement. Another sister of deceased was for a period of nine months mentally incapax. These persons all suffered or suffer from mental disease. The disease showed itself in different forms in different persons. The fact that so many of the relations of the deceased Edward Galloway suffered from mental disease is a clear indication that mental disease is hereditary in the family. The fact that the disease showed itself in varied forms shows that the disease is deeply rooted in the family. Hereditary insanity is different from hereditary disease. In the former case the insanity may and usually does take a different form in the descendant, but the cause in both cases is mental disease. With such a family history the deceased was peculiarly liable to suffer and did suffer from mental disease.”

Argued for reclaimer—The evidence proposed was relevant, and the amendment should therefore be allowed. Though the question of the admissibility of such evidence had often been raised in criminal cases, the only civil case in which the matter had been dealt with in Scotland was that of Walker v. Macadam (1806), Morr. Proof Appx. No. 3 (8th March 1806, F.C.), affd. 21st May 1813, 5 Pat. App. 675, vide Eldon, L.C., at p. 689. Esto that in Scotland the general rule in criminal cases was to reject such evidence, the rule in England was the other way—Taylor on Evidence (10th ed.), sec. 335; Earl Ferrers, 1760, 19 Cobbett's State Trials, 886, at pp. 923, 932; Frere v. Peacocke, 1843, 3 Curt. 664, at p. 669; The Queen v. Tucket, (1844) 1 Cox's C.C. 103; The Queen v. Oxford, (1840) 9 C. & P. 525, at p. 547. And in Scotland such evidence had sometimes been admitted—Hume on Crimes, i, 40;H. M. Advocate v. M'Leod, April 14, 1838, 2 Swinton 88; H.M. Advocate v. Stewart, April 25, 1848, Arkley's Rep. 471. The question of admissibility was really one of degree—Dickson on Evidence, sec. 3.

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Argued for respondent—The evidence proposed was irrelevant, for many kinds of insanity were not hereditary, and a man might be insane in one respeot and otherwise sane. To admit such evidence would not only open up a vast field of inquiry, but would have the effect of prejudicing the minds of the jury. It ought therefore to be disallowed— A v. B, February 23, 1895, 22 R. 402, 32 S.L.R. 297; Inglis v. The National Bank of Scotland, Limited, 1909 SC 1038, 46 S.L.R. 730. The case of Macadam ( cit.), in which such evidence had been disallowed, was very carefully considered and should be followed. Esto that in certain criminal cases evidence of collateral insanity had been admitted, the general rule was to disallow it— H.M. Advocate v. Gibson, December 23, 1844, 2 Broun 333, at p. 347; H.M. Advocate v. Brown, April 25, 1855, 2 Irv. 154; H.M. Advocate v. Dingwall, September 20, 1867, 5 Irv. 466; H.M. Advocate v. Paterson, April 22, 1872, 2 Coup. 222; H.M. Advocate v. M'Clinton, September 18, 1902, 4 Adam 1, at p. 13; H.M. Advocate v. Edmonstone, June 9, 1909, 47 S.L.R. 7. Esto that in H.M. Advocate v. Galbraith, June 16, 1897, 5 S.L.T. 65, such evidence had been admitted, there was no discussion of the point in that case.

At advising—