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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Semple and Another Petitioners. v [1888] ScotLR 25_597 (3 July 1888)
URL: http://www.bailii.org/scot/cases/ScotCS/1888/25SLR0597.html
Cite as: [1888] ScotLR 25_597, [1888] SLR 25_597
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
In a petition for the discharge of a curator bonis, objection was taken by the ward to a sum expended by the curator, without the authority of the Court, on the erection of a new mansion-house. The sum so expended was £3500. The net rental of the estate was £600, out of which the ward's mother, forty-two years of age, had an annuity of £300. At the death of the ward's father there was in bank a sum of £1630 on deposit-receipt. After deducting the interest upon the money borrowed to build the house the ward's income was little more than £200.
Held that as the curator bonis had given his consent to the expenditure of £3500 on the mansion-house, without having obtained the authority of the Court, and as this expenditure was not for the benefit of the ward, this item in the audit of his accounts as an officer of Court should be disallowed, reserving to the curator any claim of recompense which he might be able to establish in respect of any benefit accruing to the ward's estate.
On 9th July 1885 William James Semple of East Overton, Lanarkshire, with the consent of his uncle and curator John Baird, manufacturer, Glasgow, presented an application for recal of the appointment of Thomas Tennent, bank agent, Strathaven, as his curator bonis, and for his exoneration and discharge.
The circumstances under which the application was made were as follows: —The deceased Mr James Semple of East Overton died in July 1873, intestate, leaving a widow and two children, a son and daughter. The petitioner was his son, and was at the date of the petition fifteen years of age.
By his antenuptial contract of marriage and relative supplementary deed Mr James Semple provided to his wife the liferent of his mansion-house, and an annuity of £300 out of the rents of the estate. Mrs Semple, who at the date of the petition was forty-two years of age, had married again, and was then the wife of Dr Dougal, Strathaven.
Mr Tennent had been appointed factor loco tutoris in February 1874 to the petitioner,and he continued to act in this capacity until May 1883, when his ward attained minority, whereupon his appointment was recalled, and he was re-appointed curator bonis.
At the date of Mr James Semple's death the existing mansion-house of Overton was a small one, contiguous to the Overton steading; the drainage
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was defective, and the house overrun with rats; and accordingly, shortly after Mr Tennent's appointment as curator bonis, the minor's mother and uncle, the said Mr Baird, made arrangements for getting a new house erected, and obtained Mr Tennent's consent thereto. At this time there was in bank at the credit of the ward's estate a sum of £1630. Plans were obtained from Mr Turnbull, architect, Glasgow, and the work was commenced, and the building operations went on, everyone interested being in full knowledge thereof, and no one contemplating any difficulty until Mr Tennent's first account of intromissions, made to close on 30th September 1884, fell to be reported on by the Accountant of Court in March 1885. The Accountant then drew attention, inter alia, to a sum of £782 entered in the account as paid in connection with building operations at Overton House, and intimated that these accounts could not be passed without the authority of the Court.
Immediately thereafter steps were taken to induce Mr Tennent to resign his office of curator bonis, which he consented to do on obtaining his discharge and expenses. In April 1885, on the nomination of the ward, Mr Baird was appointed curator.
The Lord Ordinary (
Trayner ) made a remit to the Accountant of Court, who reported in favour of Mr Tennent's exoneration and discharge. On 28th January 1887 objections to the Accountant's report were lodged by the ward and his curator Mr Baird, who, inter alia, objected to the curator bonis taking credit for sums expended on the mansion-house. On 16th March 1887 the Lord Ordinary, in respect of the report of the Accountant of Court, granted Mr Tennent his exoneration and discharge.The ward and his curator reclaimed, and the Court, after hearing parties, remitted to Mr Molleson, C.A., to inquire into the circumstances of the case, and if necessary to examine witnesses and havers, and to report.
Mr Molleson in his report stated that the payments made by the curator bonis on account of the new mansion-house amounted to £1989,4s. 5d.; that the ward and the curator chosen could hardly avoid completing the work; and that the expenditure of the curator was £1709, 3s. Id., making a total cost for the new mansion-house, with stabling and offices, of £3698, 7s. 6d. The reporter then added—“I think that had the ward and his curator chosen been anxious to economise a good deal might have been saved by completing the house in a less costly manner than has been done, as the fittings and furnishings are all of a first class description, yet the question of the building of the house as entered into during Mr Tennent's term of office must, from a capital point of view, be regarded as one amounting to say £3500.” Mr Molleson stated that the estate was about 1000 acres, and yielded a gross rental of £800, and that deducting for public burdens, &c., £200, this left a net rental of £600. The annuity of £300 to the ward's mother, with the interest on the money borrowed to complete the house, left the ward little more than £200 per annum, and the reporter stated that the diminution in the ward's income had in his opinion not been brought about by good management. With reference to the house which had been erected, the reporter was satisfied, after hearing the evidence of skilled witnesses, and making a personal examination of the buildings, that the house was well constructed, and had been erected at a moderate cost. The view of the reporter was given in the following passage in his report—“The clear £600 per annum of revenue must, however, suffer diminution from the £300 of an annuity secured to Mrs Dougal during her lifetime. It does not seem good management for one in the possession of a surplus income of but £300 to reduce the same by the interest on money to be borrowed in order to erect a house manifestly in excess of the needs of one whose income so further reduced could not much exceed £200. It may also be noticed that the ward has entered upon his studies for the profession he has chosen.”
In his evidence Mr Tennent gave the following account of the part he took in the erection of the new mansion-house— “I never approved of the house at any time. I objected to it from first to last. I objected to it on the ground that William James Semple had land that needed improvement, and houses that were not in good order, and I thought that when he became of age he would be a better judge of what was needed. That was my opinion. (Q) You did ultimately give your approval?—(A) I signed the contracts. (Q) How did you come to do that?—(A) Mr Turnbull brought them to my own house, and I did it. (Q) Why did you agree to them?—(A) I do not know; it was a very stupid thing. (Q) Was it on account of the pressure brought to bear on you?—(A) It was just that.… I knew I had to pay for the house out of the ward's money. (Q) Why did you allow it to go on?—(A) Well, that was an error I committed. (Q) You saw the house from time to time as it was being built?—(A) I only saw it twice, I think. (Q) Did you just tell Mr Turnbull to go on and carry out the plans?—(A) Mr Turnbull just showed me the plans, and asked me to sign two contracts, and I knew these were the plans. (Q) You asked Mr Turnbull to prepare plans, and the house was being built according to these?—(A) Yes, perfectly. (Q) And the plans were signed before you thought it was necessary to get the authority of the Court?—(A) I could not say at that period; but afterwards I did. I had doubts. My doubts were that I was exercising powers perhaps beyond my authority. (Q) And if you should have got authority, why did you not?—(A) Well, perhaps I should have got authority; that is the blunder now.”
Argued for the reclaimers—Looking to the facts of the case, a new house was clearly unnecessary, and the expenditure on its erection was made without the authority of the Court. In such a case the onus lay upon the curator bonis, being an officer of Court, to show that the ward had got benefit therefrom— Maitland v. Kermack, July 11, 1863, 1 Macph. 1104. A curator bonis superseded or ousted the minor, and therein differed from a curator chosen— Mayne, March 11, 1853, 15 D. 554.
Argued for the respondent—There had been great delay in taking objection to these outlays, and it was only after the Accountant of Court had reported favourably to the curator bonis obtaining his discharge that any objection was taken to this expenditure. [ Lord president— The question before us is whether you have done your duty as curator bonis in consenting to this outlay, and that is a question between you
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and the ward.] The estate of the ward was lucratus by this expenditure, for admittedly the house had been well and cheaply erected; besides, all parties interested had consented to the expenditure—Ersk. ii. 9, 60; Holiday v. Gardyne, M. 13,419, and Scot v. Forbes, M. 8278. At advising—
In such circumstances nothing could be more inopportune than to consent to such a proceeding. The effect of it has been that the £1630 in bank has all been expended with the addition of a further sum, which goes to make up the total of £3500, and on that further sum the ward has to pay interest. The effect has undoubtedly been to create great prejudice to the ward without any corresponding, even prospective, advantage to him. The money has been expended on a subject in possession of a liferentrix of the age of forty-two, and the income of the ward has thus been reduced to £200. There is no necessity to go into the circumstances further. Nothing can be more candid than Mr Tennent's own admissions. He thought it very imprudent to spend so much money on the house. He was just over-persuaded by the Dougals, and surrendered his own judgment in the matter to their orders, and so entered into a contract for the building, and expended the ward's money on it.
In these circumstances I do not see what effect can be produced by talking of his good faith in the matter. In fact I think we can hardly speak of good faith in face of his own admissions. He surrendered his independence of judgment to others. What was his position? He was curator bonis to a ward of fifteen. His duty was clearly to come to the Court for special powers, and, without obtaining such special powers, his action was illegal in embarking on such expenditure of his ward's money. It is perfectly plain that if he had come to the Court with a petition containing his candid opinion as to the expenditure which he asked the Court to authorise, the petition would have been refused. He could not have come here and asked the Court to give him these powers, asserting his belief that the expenditure would be for the benefit of the ward, and without such assertion on his part the powers would not have been granted. The expenditure therefore was plainly illegal, and to the injury of the ward. Is it to be allowed as an item of charge by the curator against the ward? That cannot be sustained or considered for a moment. The expenditure of the £3500 was illegal and injurious, and must be disallowed, I listened attentively to the argument in favour of the reduction of the amount to be disallowed on the ground that the ward's estate is benefited by the expenditure—that is, that when he succeeds he will have a better house. If the curator bonis can make out such a claim, I am very far from wishing to shut him out from making it. All I desire to say on that point is, that he cannot make it in the present proceedings. What we have to do is to audit the accounts of an officer of Court. We must decide on each item, and an unlawful item of charge cannot be sustained. We have, besides, no material to decide such a question as that. If we are asked what reduction by way of recompense the curator is entitled to, and to what extent the ward will be benefited when he succeeds, we have nothing to enable us to answer. I am disposed to acquiesce in the proposal to reserve any claim for recompense which the curator bonis may have. If he seeks redress from the liferentrix in the name of the ward, an offer has been made to assign to him any right the ward may have to bring an action against the widow. I am therefore for disallowing the item of charge in question.
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The Court pronounced the following interlocutor:—
“Find that the respondent Thomas Tenuent, as curator bonis, acted illegally in entering into contracts which involved the expenditure of the ward's funds to the amount of £3500 in rebuilding the mansion-house of the estate of East Overton: To that effect and extent sustain the second and third of the objections for the reclaimers to the accounts lodged by the said Thomas Tennant: Repel the other objections, and remit to Mr Molleson to re-consider the curator's accounts in accordance with the above finding, reserving to the curator any claim of recompense which he may be able to establish in respect of any benefit accruing to the ward's estate in consequence of the said expenditure, and to all other parties their answers as accords.”
Counsel for the Petitioners— Balfour, Q.C.— W. Campbell. Agents— Gill & Pringle, W.S.
Counsel for the Respondent— Comrie Thomson—Strachan. Agent— W. Officer, S.S.C.