Scottish Court of Session Decisions

William, the next brother to Alexander, was his heir presumptive, and his estates had been sequestrated under the Bankrupt Act. Appearance was made for William Kidd, the trustee, to oppose the prayer of the petition, alleging that the free rental of the property was sufficient to support Alexander—that at least a heritable loan was a more expedient proceeding than a sale—and that a summary sale of the property of a lunatie by a curator bonis, in order to buy an annuity for him, was incompetent.

The Court ordered a report from the sheriff of the county as to the “amount and value of the property of Alexander Finlayson, real and personal, and his past and present situation and circumstances, in so far as they are set forth and referred to in the pleadings.”

From the report it appeared, that, during the lifetime of James, who was an extensive farmer, Alexander was maintained in his house, having a room to himself, and partaking of the same fare with his brother—that Alexander was of a rather troublesome temper and occasionally violent—that he was averse to strangers—and that, since the death of James, he had been boarded at £40 per annum in the house of a small farmer, where he was kindly treated. His clothing formed a separate charge. A medical gentleman adduced by Kidd, deponed that he thought any expense bestowed upon Alexander, beyond that of supplying him with wholesome food and comfortable clothing and lodging, would be thrown away, and that he would be at least as well cared for, if placed in a well regulated asylum, as where he was.

In regard to the value of the property of Alexander it appeared that it was about £1000—the free income derived from it was between £30 and £33—and Kidd admitted that it would require a sum of £61 to put the house in proper repair, while the curator averred that a much larger sum would be necessary.

It also appeared that there were debts to the amount of £118, besides the farther expense of these judicial proceedings, for which the estate of Alexander was liable.

The curator, besides disputing Kidd's title to appear, pleaded, that, considering the whole circumstances, £40 was as low as could be paid to any respectable farmer for giving suitable board and lodging to Alexander—that clothes, washing, medical attendance, &c., would require £10 or £15 more—and that as there ought to be something for contingencies, a free income of £60 should be provided. To secure such an income, and to pay the debts incurred on behalf of Alexander, was therefore the primary use of this property, and, as the Court had interfered for his protection in appointing a curator bonis (the tutor-at-law being bankrupt, and his creditors having an adverse interest), it must follow from the same principle that the Court had right to give power to the curator to sell the subject. This was a case of true necessity. Although the expense of a lunatic asylum might be lower than £40, yet as he had always been accustomed to freedom and country air, his health would be endangered and his comfort sacrificed by confinement, and the trustee had no right to insist on such an experiment being made. The trustee's interest was merely contingent on his constituent's surviving Alexander. In competition with the primary right of Alexander to have decent maintenance out of his own property such a right as the trustee's was essentially of a subordinate character, which must be postponed. ¹

The trustee answered, that, in the Dundee Asylum, where the most approved treatment would be given, and every attention paid to health, a sum of only £25 was charged for board. For a similar sum, it was probable that he could be comfortably lodged in some farm-house in Forfarshire. As this was considerably below the rental, and would be still more so, after the house was repaired, there was no necessity for selling, as a small loan would suffice to pay the debt hitherto incurred. And as nothing but necessity could justify a sale, no purchaser would give a full price for the subject if authority were granted to sell it. ^* At least, the Court should only authorize a partial sale in the mean time, as the right of the heir should not be unnecessarily impaired.