Scottish Court of Session Decisions

In this curatory an objection was raised by the Accountant of Court to the accounts of a curator bonis, in regard to which he made a report to the Lord Ordinary, which his Lordship reported to the Court, adding to his interlocutor the following

Note.—As the point which has been brought under consideration by the Accountant—namely, whether, seeing that the curator bonis stands in the relation of that of nearest agnate to his ward, he is entitled to the usual allowances of commission—materially affects the interests of the curator in the present case, and involves a question of some general importance, and the estate is one of very large amount, the Lord Ordinary has thought it right to report the case for decision.

The circumstances under which the point is raised are brought out in the report of the Accountant; and the questions for consideration are—1 st, Whether, seeing that the appointment was made without any restriction or qualification, to the effect that the curator should act gratuitously, such as that inserted in the interlocutors in the cases of Jackson, 11th December 1821, and Robertson, 3d February 1830, and that an annual allowance had been hitherto made to the curator without objection, it would be proper now to disallow the payments so made; and, 2 d, Whether, assuming that it would not be proper, ex post facto, to apply the condition as to acting gratuitously, the present position of matters is such as to render it necessary to impose that condition for the future.

With reference to the first of these questions, the curator relied on the decision in the case of Macdonald, 8th July 1854, in which the Court refused to apply the above rule, where it appeared, as it did here, ex facie of the petition at the date of the appointment, that the party proposed was the nearest agnate; and the curators had been allowed to enter upon the duties of the office without qualification or restriction as to remuneration; and to that extent the decision in the case of Mac donald seems to bear out the curator's view.

Upon the second question, the Lord Ordinary has not been able to find any express authority beyond the general rule that the office of tutor-at-law and curator is held to be gratuitous. But as against the view that this rule ought to be laid down for the future, in the present case it was strongly contended on the part of the curator that it was not imperative so to apply it, because the incapacity was not of that complete and permanent character which would necessarily warrant a cognition, and entitle the nearest agnate to demand the office of curator; and it would, moreover, not only be inexpedient, as regards the economical management of the estate, that the present curator should be changed, but also unjust, as matters now stand, to the curator himself, as depriving him of an occupation for which he had been all along trained, but the onerous duties of which he could not, without remuneration, be expected to undertake; and it is for the Court to judge whether, in these special circumstances, the appointment should be continued upon the footing on which it has hitherto been understood to have been made. (Initd.) D. M.