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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Dunlop or Ross and Others [1877] ScotLR 15_109 (20 November 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0109.html
Cite as: [1877] ScotLR 15_109, [1877] SLR 15_109
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SCOTTISH_SLR_Court_of_Session
Page: 109↓
Court of Session Inner House First Division.
Facts:
In a Special Case involving the construction of the terms of a trust-settlement, the parties were, firstly, certain beneficiaries under the deed, and their father, who was resident in New Zealand, as tutor and administrator-in-law for such as were pupils; secondly, the trustees; and thirdly, a pupil brother of the parties of the first part. The interests of the first and third parties conflicted. The Court held) (distinguishing the case from that of Park, June 15, 1876, 3 E. 850) that they could competently entertain the case as presented to them, but (2) that as the father was resident at so great a distance from home, the proper course was for them
Page: 110↓
to appoint one curator ad litem to such of the first parties as were pupils, and another to the third party.
Charles James Tennant died in 1870, leaving a trust-diposition and deed of settlement under which he left his whole estate to trustees for certain purposes. After bequeathing a number of annuities and legacies, he provided for the disposal of the residue of his estate as follows:—“Lastly, I direct and appoint my trustees to divide and apportion the residue and remainder of my means and estate, including the sum set apart to meet the said annuities at the termination thereof, respectively among my nephews and nieces and their descendants, in the following proportions.” Then follows a list of residuary legatees, and the proportions of residue that they were to receive, and among these the following:—“To the children of James Dunlop, Esquire, residing at Poverty Bay, New Zealand, equally among them, eight one-hundreth parts or shares.”
The said trust-disposition contained, inter alia, the following declarations, viz.:—“Declaring that the provisions of minors shall not vest or be payable until they respectively attain majority”… “and, until the beneficiaries respectively attain majority, my trustees shall pay over and apply the annual profits and proceeds of the said residue, in the proportions of their rights to the share of residue, to them, or to any guardian for their behoof.”
At the time of the truster's death James Dunlop had eleven children, and on 16th May 1874 a twelfth child, named Henry Colin Dunlop, was born to him.
This was a Special Case brought for the purpose of having a decision from the Court as to whether Henry Colin Dunlop was entitled to the benefit of the provisions of the trust-settlement, and if so, to what extent. The parties to it were, firstly, the eleven children born before the decease of the testator, and their father as tutor and administrator-in-law for such as were pupils; secondly, the trustees under the deed; and thirdly, Colin Henry Dunlop, and his father as his tutor and administrator-in-law. James Dunlop was resident in New Zealand when the case was presented.
The question of competency was brought before the Court when the case was in the Single Bills. Counsel for the third party argued that the case was different from that of Park, June 15, 1876, 3 R. 850, 13 Scot. Law Rep. 550, as there there was a conflict of interest among the parties; the father and the adrainistrators-in-law of the pupils, two of the parties to the Special Case, had each conflicting interests with that of the pupil, while here neither the trustees nor the father of the pupils and minors had any interest whatever in the case, and therefore it was no object to them to prejudice the interests of any of the parties.
Authorities— Stodart v. Stodart, March 5, 1870, 8 Macph. 667; Ranken v. Beveridge, June 17, 1870, 8 Macph. 878; Park v. Park, June 15, 1876, 3 R. 850, 13 Scot. Law Rep. 550; Walkinshaw, May 31, 1872, 10 Macph. 763, 9 Scot. Law Rep. 484; Johnston v. Johnston, M. 16, 346; Christie, Nov. 27, 1873, 1 R. 237; Young, Dec. 20, 1828, 7 S. 220; Walker v. Walker's Trustees, June 17, 1870, 8 Macph. 870; Morrison, May 13, 1871, 9 Macph. 736; M'Leod, June 28, 1871, 9 Macph. 903; Moir, June 17, 1871, 9 Macph. 848; Hope v. Hope's Trustees, March 15, 1870, 8 Macph. 699; Orr, Feb. 10, 1871, 9 Macph. 500, 43 Scot. Jur. 264; Mackintosh v. Wood, July 5, 1872, 10 Macph. 933; Chancellor, July 19, 1872, 10 Macph. 995; M'Neill, M. 16, 384.
At advising—
The first parties are those children of James Dunlop who were alive at the time of the testator's death, and the third party is a son born to Mr James Dunlop since Mr Tennant's death. The question is, whether the third party is entitled to participate in a certain fund? The only other question is whether the trustees are entitled to withhold the fund in case of more children being born to Mr Dunlop. It is clear that James Dunlop has no interest in the decision of the question. He may have a feeling, but he has no interest. On that ground I do not think it is unsafe in the interests of those concerned that he and the trustees should have adjusted a Special Case for the trying of the question between the children born before and after Mr Tennant's death, and of the further questions between the children and the trustees.
Now that the case has been brought into Court, I am of opinion that the children must be represented by curators appointed by the Court, and not by the father, and that there must be a curator for the children born before Mr Tennant's death, and another for the children born after. My chief reason for holding so is that Mr James Dunlop is not living at home, but is resident at a great distance, and therefore cannot elect for himself which side he should take charge of, and it would be very strange were we to elect for him. In the circumstances it seems the most proper and the safest course that there should be representation by curators.
The case is entirely different from that of Park, June 15, 1876, 3 R. 850, 13 Scot. Law Rep. 550. That was where pupils had rights to a certain estate in a certain event. The other parties were his three cousins, who also happened to be their tutors-nominate under the testament, the terms of which raised the question in the case. The father of the pupils was also a party. The three cousins were beneficiaries, and had a direct interest against the pupils, and the object of the Special Case was to settle their respective rights. The cousins also had a question with the pupils' father, and he had a question with his sons—thus the whole parties had adverse interests. The only protection that the pupils had was that the Special Case was made by their cousins and their father. We held that such a Special Case could not be entertained for a moment, and that the pupils' interest could not be allowed in any way to be affected by it. It is because the father in the present case is in a totally different position from the position occupied by the father in Park's case that I come to the present conclusion.
Page: 111↓
The Court therefore appointed a curator ad litem to each of the first parties as were pupils and to the third party, the Lord President intimating that in such cases as the present the curators should be nominated by the Court itself.
Counsel for First Parties— Jameson. Agent— John Martin, W.S.
Counsel for Second Parties— Couper. Agent F. J. Martin, W.S.
Counsel for Third Party— Crawford. T. & B. B. Ranken, W.S.