Scottish Court of Session Decisions

On 30th October 1885 James Tweedie of Quarter, Biggar, was appointed curator bonis to Miss Jane Macmaster, of Edinburgh. He thereafter duly entered on the duties of his office, and made up and lodged with the Accountant of Court an inventory of his ward's estate.

On 21st October 1886 the curator presented a petition to the Junior Lord Ordinary praying for discharge and delivery of his bond of caution, on the ground that the ward was now of sound mind and capable of managing her own affairs. Medical certificates to this effect were duly lodged. In these circumstances the petitioner applied, as above set forth, for discharge and exoneration, and for delivery of the bond of caution.

On 16th November 1866 the Lord Ordinary ( Lord Trayner) appointed the petition and relative documents to be boxed to the Judges of the First Division of the Court.

“ Note.—It appears to me that this petition, in so far as it prays for the recal of the curatory, is one with which I cannot competently deal— Kyle, June 10, 1862, 24 D. 1083; Lockhart, 24 D. 1086; Sinclair, 23 S.L.R. 737. I have therefore reported it to the Court. If the curatory is recalled I can dispose of the remaining part of the prayer of the petition.”

Argued for the petitioner—The question here was whether, when the curator applied for discharge, it was competent for the Junior Lord Ordinary to recal the appointment— Kyle, June 10, 1862, 24 D. 1083. The difference between that case and the present was, that there the petition was for the appointment of a new curator; here that was unnecessary, because the ward had become sane. The recal of the curatory was merely ancillary to the curator's discharge in respect of his acts and intromissions, and the Lord Ordinary could grant that. The difficulty arose from there being no provision in the Distribution of Business Act (20 and 21 Vict. c. 56) for the recal of curatories. Authorities cited by the Lord Ordinary.

Appearance was also made for the Accountant of Court, who stated that ever since the decision in Kyle's case it had been customary for the Lords Ordinary to deal with the whole matter connected with such applications, and there was nothing so very special in the circumstances of the present application as to take it out of the ordinary rule.