Scottish Court of Session Decisions

This was a petition by Mr John Sawyer, committee of the estate of Miss Caroline Rae, a lunatic, residing in England, praying for the recal of the appointment of Mr Alexander Sloan as curator bonis to the said Miss Rae. The estate from which the lunatic's means were derived was situated in Scotland, and vested in certain trustees. On December 27,1870, a petition was presented by Mr William Rae, the lunatic's brother, and others, praying for the appointment of a curator bonis to her and her sister Harriet, who was in the same mental condition. The prayer of the petition was refused in regard to the latter on the ground that the Court of Chancery had already appointed committees of her person and estate, but Mr Sloan, the respondent, was appointed curator bonis to Caroline Rae. In October 1870, on the application of the trustees, all of whom were residing out of Scotland, Mr Robert Stewart, solicitor, Glasgow, was appointed judicial factor on the trust-estate. In December 1871 the Court of Chancery appointed committees of the person of Miss Caroline Rae, and appointed the petitioner Mr Sawyer committee of her estate. The judicial factor considered himself bound to pay over the income of the trust-estate to the curator bonis, who, on the other hand, refused to pay it to the petitioner, alleging that he alone had the management and control of the lunatic's affairs. This petition was accordingly presented by Mr Sawyer for the recal of Mr Sloan's appointment as curator bonis, and the latter lodged answers, in which he averred, inter alia, that the application for the appointment of a committee of the ward's estate was not made in the true interests of the ward, but proceeded from motives of personal feeling on the part of the relatives who presented the application, and that the application had not resulted in the discovery of any property of the ward in England.

Argued for the petitioner—That the lunatic being an Englishwoman, and cognosced in England, her guardian ought to be an Englishman, resident in that country. In Scotland the appointment of a curator bonis would be superseded by the appointment of a tutor, and the same rule ought to be applied in the case of the appointment of a committee of the person by the Court of Chancery.

Authorities— Scott v. Bentley, 28 Feb. 1855, 1 Kay & Johnston, 281; Baynes v. Sutherland, M. 4595, 1 Pat. App. 454; Rose v. Grant, 9 June 1835, 7 Jur. 403; Accountant of Court v. Oeddes, 29 June 1858, 20 D. 1174; Bryce v. Graham, 26 Jan. 1826, 6 S. 425; Laing v. Robertson, 21 June 1859, 31 Jur. 554; Murray v. Baillie, 24 Feb. 1849, 11 D. 710; Johnston v. Beattie, 29 Jan. 1856, 18 D. 343.

Argued for the respondent—That as his appointment was made by a Court which had jurisdiction to appoint an administrator of the ward's estate in Scotland, and as that appointment was prior in date to the alleged appointment by the Court of Chancery, it was not liable to be recalled on the grounds set forth in the petition. The management of the lunatic's property must be regulated by some one resident in the country in which it was situated.

Authorities— Preston v. Lord Melville, 29 March 1841, 2 Robinson's App. 45; Hay. Petr., 16 July 1861, 23 D. 1291; Stuart v. Moore, 27 Feb. 1861, 23 D. 446.

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