Scottish Court of Session Decisions

John Jackson, painter in Edinburgh, presented a petition to be appointed curator bonis to his sister, Miss Jackson, who was affected with mental incapacity. The application was opposed by Alexander Wight, banker, his brother-in-law, as administrator-in-law for his children, who were nephews of Miss Jackson by a deceased sister.

The respondents stated that Miss Jackson had formerly been under the curatory of the late Thomas Allan, banker in Edinburgh—that she had made a will in favour of the respondents, and that, although the petitioner and they had each procured a copy of the deed from Mr Allan, yet the petitioner ought not now to become the custodier of a deed which cut off his own succession—that on Mr Allan's death the petitioner had got his sister reinstated in the management of her affairs in June 1834—that in August following she had uplifted £6496 from Messrs Robert Allan and Son, bankers in Edinburgh—that in November following she had bought £300 of original stock of the Royal Bank, and had immediately become cautioner for a cash-account of £300 in favour of the petitioner—and that since then she had been returned to the asylum at Morningside, where she had previously been. In these circumstances, it was submitted that the petitioner ought not to be appointed curator bonis, as it would be proper to recal the cautionary obligation in his favour, and to check the application of the sum uplifted by Miss Jackson from the bank, and, as the petitioner refrained from serving tutor-at-law, the Court had the power of selecting any proper party to be curator bonis.

The petitioner answered that the sum was uplifted from the bank a few weeks before the failure of the bank, and that act of administration by Miss Jackson was most beneficial to her. In regard to his whole intromissions he was bound to find caution before extract, and as he could serve tutor-at-law at any time, and defeat the appointment of any curator bonis, it was the practice of the Court to prefer his nominee of himself to the office of curator bonis unless some tangible objection existed. The tenor of the will of Miss Jackson was well known, and its safe custody could easily be provided for.