Scottish Court of Session Decisions

Lord President—This case is brought with regard to the guardianship of the children of the late William Macbean Rankine, and his spouse, now Mrs Maquay. They were married in 1874. Mr Rankine died in 1879, and was a domiciled Scotsman at his death. The marriage-contract had nominated tutors to the children, but the only surviving and accepting tutor is the party of the first part. The party of the second part is the widow, who is now married to a gentlemen who is not a domiciled Scotsman. She lives with her husband at Florence. These are the facts of the case as agreed upon by both sides.

Mrs Maquay, as the mother of the pupil children, maintains that she has a right to be regarded as one of the two guardians of the pupils by virtue of the Guardianship of Infants Act, sec. 2. Mr Campbell, on the other hand, maintains that he has a right to be sole guardian, and that Mrs Maquay is by law disqualified. The only question of law is in reference to the supposed disqualification. The first party, Mr Campbell, argues that by the law of Scotland Mrs Maquay is not now entitled to the position she claims, in spite of the terms of the statute and its second section; Mrs Maquay argues that she still possesses her right of acting as tutor, and is not disqualified by her second marriage. This is a pure question of law, and it is not and could not be any appeal to the equitable jurisdiction of the Court. We could not here entertain any question as to the beneficial interest of these children, and we could give no effect to grounds upon which a tutor is removable under sections 6 or 13 of the Act. We are tied down to the question whether the widow is disqualified by her second marriage. The second section of the Act is in these terms—[ His Lordship read the section quoted above.] Now these words are very strong. This is not a matter in which anyone is entitled to use any discretion. Even the widow is not left in a position to use any discretion. The words are imperative. The only condition is that she shall survive. If she does, then the widow becomes the guardian of the child without any other condition being imposed, and she either occupies that position alone or along with another as in the present case.

Now, it is said that this provision must be read along with the rule of the common law, which makes it a disqualification if the widow enters on a second marriage. The rule so established is quite distinct in the decisions of the 16th and 17th centuries, and it may be said that nothing has been decided since to shake these authorities. But one cannot help seeing that these older decisions are founded not on the principles of the common law or of equity, but upon the authority of the Roman law, and the earliest of these cases—that of Kerbechil—is a remarkable illustration of this. It has been argued to us that we ought to disregard these decisions, as the spirit which inspired them is irreconcilable with the state of modern legal opinion. That is rather a dangerous suggestion, and I am not disposed to put my judgment on any such ground. It is clear to my mind that the statute did not take account of any principle of common law which might be opposed to any provision of the Act. We know that there are great differences between Scottish and English law on such subjects as the guardianship of children, the status of married women, and the relations of parent and child, and of pupil and tutor. But this section now under consideration applies to the whole United Kingdom, and so instead of attempting to reconcile the common law principles of the various systems it makes a positive rule which passes them all by and takes no cognisance of any of them. No matter what the Scottish or English law may be, “the mother, if surviving, shall be the guardian of such infant.” The other sections of the statute illustrate this in some degree. The 6th section makes it competent to apply for the removal of a guardian appointed by the 2nd section, or acting under this section. But the ground for that is a consideration of what is best for the child's welfare. There is no question of disqualification either existing at the time of the father's death or supervening thereon. Then the 13th section saves the jurisdiction of this Court to appoint or remove guardians. It would be very unfortunate if it could be supposed that the Act interfered with this jurisdiction, because there are a great many cases in which the Court exercises a large discretion as to the appointment or removal of the guardian. But this does not interfere with the general intention of the Act in regard to the question now under the consideration of the Court. I propose that we should find in favour of the contention of the second party to-the case.

Lord Mure—The only question before us is, whether by section 2 of this Act a mother in the position of the second party is entitled to occupy the position of guardian to her child? I think it is impossible to overcome the express provisions of the statute, which imperatively direct that she shall take this position. We must assume that the mother is to continue to act as the guardian of the child. As to whether there may be machinery provided by the Act for asking for the removal of the mother as guardian of the child, I express no opinion. I think that might be open to some doubt. It is enough in the present case to find that the second party under the provisions of this statute is entitled to act as tutor to her children, and that she is not disqualified by her second marriage from so acting.

Lord Adam—I cannot say that I have ever had any doubt about this case. It appears to me that by the second section of this statute it is clearly provided that a mother must continue to act as the guardian of the child after its father's death. It is said that the mother here has married again, but she is still the mother of the child, and the Act is quite explicit as to her duty in regard to the guardianship of the children. The Act must

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