Curious Case - Reduction of a Will [1851]

MACQUARIE v. MACQUARIE'S TRUSTEES

This was an action at the instance of Mr Charles Macquarie against the Hon. William Henry Drummond (now Lord Strathallan) and Mr George Drummond Graeme, of Inchbrake, the testamentary trustees of the late Capt. Lachlan Macquarie of Jarvisfield. The pursuer, who is the son of the late Col. Macquarie of Glenforse [sic], and cousin-german and nearest heir of line and conquest to the deceased Capt. Macquarie of Jarvisfield, alleged in his summons that the defenders, or others acting for them, has taken advantage of the said Capt. Macquarie's weakness or facility of mind, in so far as they had, by three codicils attached to his will, got him to assign, in particular, the whole of his heritable and moveable estate to the Hon. William Henry Drummond, now Lord Strathallan; and the object pursuer, therefore, was to have these codicils reduced and rescinded. The case went to trial on the following issues : —

"It being admitted that the pursuer is heir-at-law of line of conquest served to the deceased Lachlan Macquarie of Jarvisfield, and assignee under the assignation No. 5 of process:

"Whether the codicils of 11th April 1844 and 2d December 1844 to the trust-deed of 23d December 1835, all contained in No. 8 of process, or either of the said codicils, are not the deeds or deed of the said Lachlan Macquarie:

"Whether at the dates or date of the said codicils, or either of them, the said Lachlan Macquarie was weak and facile in mind, and easily imposed upon; and whether the defenders, or either of them, by themselves or others, taking advantage of his weakness and facility, obtained or procured the said codicils, or either of them, by fraud or circumvention, to the lesion of the said Lachlan Macquarie."

The trial commenced on Monday last, before Lord Robertson, and a jury, in the First Division of the Court of Session; and it did not finish till yesterday afternoon.

It is impossible to give anything even approaching to an outline of the evidence that was adduced; but in order to show the nature of the case, we subjoin an abstract of a few of the more prominent points brought out in the trial.

The testator, Captain Macquarie, was the son of General Macquarie, formerly Governor of New South Wales. He was born in Australia, and came home to this country when only about eight years of age. His father, two years afterwards, died, but his mother survived until 1835 — the year he became of age. In the meantime, he had purchased a commission in the Scots Greys, where he seemed to have fallen in with a somewhat boisterous set of companions, which had led him to contract habits of intemperance, which he never got rid of. The pursuers led witnesses to prove that, prior to this time, he showed symptoms of a weak mind, which continued to increase up to the period of his death. Dr Anderson of Glasgow, who saw him in 1841, and on several other occasions before his death in May 1845, deponed that he was labouring under moral insanity; which affected the feelings, temper, and conduct, and led to a recklessness of conduct and behaviour, which made the person affected disregardful of consequences either to himself or his neighbour. Although Dr Anderson so regarded the deceased, he did not consider him to be a person of a weak and facile mind that would be easily imposed upon. On the contrary, he looked upon him as being exceedingly acute in conversation. Dr King of Helensburgh saw Captain Macquarie frequently in Inverary in 1843 and 1844, after he had sold out of the army and settled on his estate at Jarvisfield, in the Island of Mull. He was much addicted to drink, and had many eccentricities. Dr M'Coll, Tobermory, averred that Captain Macquarie at one time took a notion that he was chief of his clan, and ordered himself to be called Macquarie of Macquarie. Dr M'Laughlan, Ardnamurchan, met Macquarie for the first time in May 1842, at a market in Tobermory. Macquarie came abruptly up to him and asked him why he did not wear moustachios, and then inquired at him if he had anything to buy or sell, and on, witness answering in the negative, he asked "What the devil are you?" Witness replied that he was a surgeon; upon which Macquarie held out his hand for him to feel his pulse, and then crying he was "done for," turned on his heel and went away. In witness' estimation Macquarie was at this time quite sober. Dr Donald Campbell, formerly house-surgeon in the Glasgow Lunatic Asylum, and now resident superintendant in the Lunatic Asylum in Aberdeen, spoke to having met Macquarie frequently in Mull, from 1839 downwards, and was of opinion that he was a very excitable person, and much influenced by sudden impulses, even against those with whom he was on a friendly footing. On one occasion he ordered all the people about his property to wear moustachios, and that those who did not comply with the rule were to be dismissed off his estate. When this mood was on him, he had, while in company with witness, met the precentor of the parish church, when he asked him why he did not wear moustachios? The precentor replied that he could not sing with them; upon which Macquarie retorted "Damn ye, Sir, you will whistle better through them than ever you sung in your life." Dr Campbell then spoke of Macquarie as having, in a fit of recklessness, once dragged him out of his bed while sleeping in an inn in Mull, on the supposition that it was some stranger with whom he might have a fight. In fine, Dr Campbell considered Macquarie to be insane, and that his insanity was of that character called oino-mania — viz., an insane propensity to indulge in intoxicating liquors. Other witnesses spoke to Macquarie being fond of plays, and of acting Bombastes Furiosos, which one of them remarked was not very well understood in Mull. He was also represented as having taken an active part against the Non-intrusion party, and that on one of that party coming to preach in the parish church as Salen in Mull, he got up, stamped with his feet, and, lifting up his books, left the church in a high rage — exclaiming against the parish minister for having allowed his pulpit to be so used. These are only a mere tithe of his eccentricities related of Macquarie, who, it was said, after making out a will, leaving his property to Sir John Campbell of Aird in 1835, appended the codicils thereto, at the instigation, it was insinuated, of the late Lord Strathallan, to whom he was much indebted during his minority — and by one of which codicils in 1844, his estate was made to go to the then Master of Strathallan, now Lord Strathallan. This alleged circumvention was represented to have occurred at Strathallan Castle, where Macquarie was stopping for a short time previous to the making of the codicils. The only connection which the present Lord Strathallan could be said to have with the matter, was embraced in a letter from his father to the deceased Mr Tawse, the Edinburgh agent of Macquarie. In this letter the deceased Lord wrote as follows: — "I never mentioned the circumstance of the settlement in my son's favour to any one but Lady Strathallan; and it was only after Lachlan's (Macquarie's) death, that I learnt that he has informed my son of the circumstgance during his last visit here, a few months before he died."

For the defenders it was shown, in evidence, that Macquarie had taken umbrage at Sir John Campbell, in whose favour the first will had been made—adding that as he had not taken care of his own property, he could not be expected to take care of his (Macquarie's), did he leave it to him. It was also proved that he did not regard the pursuer, his cousin, in a favourable light, calling him "a cub"; and that he had mentioned to Mr Robertson, formerly Sheriff-Substitute at Tobermory, and to the Rev. Mr Dewar, formerly minister at Salen, that it was his intention to alter his will, so as to exclude Sir John Campbell, and give his property to the Hon. W. Henry Drummond, now Lord Strathallan, out of respect for himself, and out of remembrance for the kindness that, in his youth he had received from the late Lord Strathallan. As to Macquarie's sanity, the former and the present Colonels of the Scots Greys deponed that Macquarie was, while in that regiment, a fast liver, fond of "larking," but highly respected, at the same time, by his brother officers, and not having anything about him that betokened insanity. Sheriff Robertson spoke of knowing Macquarie from 1842 to 1846, and that, although given much to intemperance, as an instance of which, he mentioned that he generally commenced to drink ale and wine after breakfast, the latter out of a tumbler—yet he regarded him to be a person of a sound mind when sober, quite capable of making a will, and not easily imposed on, being opinionative and sometimes obstinate. He, no doubt, committed some absurd things, such, for example, as fining a man, as a Justice of Peace, on board a steamer for some alleged offence, and kissing a girl on the streets during an election, which he called canvassing. The Rev. Dr M'Leod of Morven, the present Moderator of the General Assembly, was acquainted with Macquarie, the Presbytery meeting being held in an inn belonging to him in Mull. He sometimes attended the Presbytery meeting, and dined with the members, and they with him. At the Presbytery dinner table he conducted himself with great propriety. He was amusing, but sometimes gave the conversation a serious caste. He was also argumentative; was well acquainted with the ritual of the Church of England; while his conversation was just such as might have been expected from an enlightened country gentleman. Witness, in fact, thought him very clever—a person of great penetration and discrimination, and quite capable to make a will, supposing him not to yield to that habit of intoxication into which he so much latterly fell. The Rev. Mr Dewar testified to the same effect — relating, with much minuteness, a religious conversation which Macquarie had with him while upon his death-bed. This was the general tenor of the evidence for the defence. After the Dean of Faculty had replied for the defenders.

Lord ROBERTSON, in summing up, ridiculed what he called the fine-spun speculations of medical men on the subject of lunacy—with long Greek names which he could not even spell. The simple question here was — Was or was not the late Captain Macquarie insane? He understood insanity to be the derangement of the intellect; but the worst that had been said of Captain Macquarie by all the witnesses of any note was that he was only morally insane. Now, his excellent friend Burke, who suffered at the end of the Tolbooth — (a laugh) — or any Glasgow pickpocket, might truly be called morally insane — (renewed laughter) — but he supposed their intellectual faculties were not on that account impaired. Indeed, if all of them could lay the flattering unction to their souls that they had never done anything which they should not have done, they were much better men than he took them for — (laughter) — or, at least, they were much better than he was; but if, on that account, they were never to be allowed to make a will, what was to become of them or rather those that came after them? In this case the poor man's insanity seemed just to amount to an irresistible propensity for drink, and accordingly he muddled himself away among these Mull lairds in the manner he had done. He (Lord Robertson) had the highest respect for these worthy gentlemen, and if he was at all fond of whisky-toddy, which, thank God, he was not, he would be very happy to meet with them. (Laughter.) Nobody seemed to be considered drunk who could move a finger. Accordingly, various improprieties of conduct, on the part of Captain Macquarie, were spoken to—such as acting the Lord Mayor's feast in a sheet on a sofa — but supposing he (Lord Robertson) were to personate Lablache, would they consider him mad? (Roars of laughter.) There was another long rigmarole story about his ordering a person to be locked-up in Salen Inn, and fed on bread and water, which, however, the witness said was seasoned with something better. (A laugh.) He (Lord Robertson) verily believed all the water in Mull was well seasoned; in fact, they had no evidence that this fluid was in use there at all — (great laughter) — except for ducking boys who had been trespassing, which was another of the instances of insanity brought forward. His Lordship then went minutely over the evidence, the general draft of which was, that the gentleman, though certainly eccentric, was perfectly rational when sober; and, after adverting to the absurdity of supposing a man like Lord Strathallan capable of circumvention or fraud (which the pursuer to establish his case must infer), he concluded a charge of nearly four hours' duration strongly in favour of the defenders.

The jury, after an absence of quarter-of-an-hour, unanimously found for the defenders on both issues.

Counsel for the Pursuer — C. Neaves, D. Mure, and George Patton, Esqrs. Agent — Mr A. M'Neill, W.S.

Counsel for the Defenders — The Dean of Faculty, and John Inglis and George Ross, Esqrs. Agents — Messrs. Murray and Logan, W.S.

Provenance
'Curious Case - Reduction of a Will'. Caledonian Mercury (Edinburgh, Scotland), Monday, 10 November 1851; Issue 20135. Another version is recorded as a law report in The Scotsman newspaper dated 8 November 1851.

Context
This court case was a legal challenge brought by Charles Macquarie (1814-1866), eldest son of Charles Macquarie (1771-1835) against the terms of the final Will of his deceased cousin Lachlan Macquarie Jnr. (1814-1845) in favour of William Henry Drummond [9th Viscount Strathallan]. Lachlan Macquarie Jnr. died on 7 May 1845 at Craignish Castle, the home of his father-in-law, Colin Campbell of Jura & Craignish (1772-1848).

The case was held in Edinburgh before Lord Robertson between 3-7 November 1851. The ruling in favour of the defendants was the final step in the complete transfer of all the lands purchased on Mull by Lachlan and Charles Macquarie after 1803. The Jarvisfield/Glenforsa estates would never again be held in Macquarie family ownership.

Additional Notes
Luigi Lablache (1794-1858) was an Italian singer of French origin. He was famous as a bass and his specialty was comic opera.

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