Scottish Court of Session Decisions

William Johnstone of Harthope, institute of entail in possession of the entailed lands and estate of Harthope and others, in the county of Lanark, presented a petition for the disentail of the said lands and estate under the Entail Amendment Act 1848 (11 and 12 Vict. cap. 36), and subsequent entail statutes. The three next heirs of entail were John Anderson Johnstone and his two sons, the youngest of whom, William Gillespie Johnstone, was a minor, and had no legal guardian except his father. A curator ad litem was therefore appointed to him. A remit was made in the usual form to an actuary to ascertain the value of the expectant interest of these three next heirs, and he duly reported thereon.

The curator ad litem to the minor heir, however, was not satisfied with the value which the actuary to whom the Court had remitted put upon his ward's expectancy, and took the opinion of another actuary as to the value.

The Lord Ordinary, after discussion, approved of the valuation of the actuary to whom his Lordship had remitted the case.

The petitioner refused to pay the curator's charges and the expenses incurred by him. The curator moved the Lord Ordinary to find the petitioner liable to pay these expenses.

The petitioner argued that he was not liable for the curator's expenses, and further that part of the expenses incurred in the particular case were unnecessary and improper, and that the demand was contrary to practice.

The Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary having heard counsel, finds the curator ad litem to the respondent William Gillespie Johnstone entitled to expenses, allows an account thereof to be lodged, and remits the same to the Auditor to tax and to report.

“ Opinion.—I do not find that there is any established rule of practice in this matter, but I have no doubt as to what the rule ought to be. It is necessary to distinguish between the case of a pupil or minor respondent and that of a respondent who is sui juris. A respondent who is sui juris may determine for himself whether he ought to appear in the process; and if he does not think fit to appear, his non-appearance is a fact in the case upon which the Court will proceed. It is not conclusive of the merits of the petition, but it fixes conclusively that the respondent's interests may safely be left in the hands of the men of business or men of skill to whom the Court may remit, because he himself has been content so to leave them. But the Court cannot proceed upon the same assumption in the case of a pupil or a minor. It is indispensable that his interest should be protected by the appointment of a curator ad litem. The expense of that appointment must necessarily be incurred in order to the success of the proceeding; and it ought therefore to fall, not upon the respondent, whose interests are brought into question by no act of his own, but upon the petitioner, who requires that they shall be determined in order to enable him to take the benifit of the Entail Amendment Acts.

Page: 292↓

“It is a different question whether a curator is entitled to charge the petitioner with the expense of consulting an actuary, and I am not disposed to lay down any general rule more absolute than this, that I think all the expenses which are necessary to enable a curator to discharge his duty are proper expenses to be charged against the petitioner. It must be remembered that the office of a curator ad litem is not a merely nominal but a highly responsible office, and if a curator finds that he cannot form a satisfactory judgment as to the value of his ward's interest, either for himself or with the assistance of the reporter to whom the Court may have remitted, it is plainly in accordance with his duty that he should inform his mind by advising with persons of skill. It does not follow that in every case a curator ad litem should be entitled to charge the petitioner with the expense of a separate actuary. Experience shows that, in general, curators have little difficulty in determining for themselves, with such explanations as they may receive from the actuary appointed by the Court, whether his report should be accepted or not. It is a question of circumstances, and I should not suppose that curators, who are generally persons of experience in business, will have any difficulty in practice in deciding whether it is necessary and proper to take farther advice. If they have incurred expense unnecessarily and improperly, the petitioner may object upon the audit of the accouut. But I think he must pay the expenses which have been properly incurred.”