Scottish Court of Session Decisions

The late John Stewart, shipowner and insurance broker, 3 Fenchurch Avenue, London, died on 25th August 1888 in London, survived by his wife Mrs Charlotte Ferguson or Stewart, and by an only child Elizabeth Stewart, born 10 ^th October 1877.

Mr Stewart was a Scotsman by birth, and died domiciled in Scotland, his principal residence being his mansion-house of Larghan, Coupar-Angus. His free personal estate was about £20,000, and his real estate about £9200 in value. Mr Stewart left no nomination of tutors or curators to his child, and the present petition was accordingly presented by Mrs Ann Stewart or Martin, his sister, and certain others, the next-of-kin of the said pupil on her father's side, for the appointment of tutors to act along with Mrs Stewart in terms of the Guardianship of Infants Act 1886. They averred that Mr Stewart died intestate; that he and his wife never entered into any marriage-contract; that the said Elizabeth Stewart was his sole heir; that she was in delicate health both mentally and physically, and would not likely ever be able to manage her own affairs or to make a will. They further averred that Mrs Stewart was without experience in business, and was not qualified to take sole charge of winding-up the deceased's London business. They suggested as a suitable person for the office of tutor, inter alios, James Adam Young, the eldest son of another sister of the pupil's father, who had acted as Mr Stewart's manager, and was therefore conversant with his business. Mr Young's name appeared in the petition as one of the petitioners, but he wrote to the petitioners' agent requesting him to withdraw his name, as it was there “not only without my knowledge and consent, but against my clearly expressed wishes.”

Among the parties called as respondents was William Ferguson, farmer and manure merchant, Perth, a brother of Mrs Stewart.

Mrs Stewart lodged answers, in which she denied the allegations regarding the pupil's mental condition, but admitted that she suffered from certain delicacies of constitution, including defective sight and slight curvature of the spine.

The respondent further averred—“She has more knowledge and experience regarding her husband's business than any of the petitioners. She assisted him largely in his business correspondence (his hand having been injured by an accident), and in matters of personal business he habitually consulted her. Further, in realising the deceased's estate the respondent will have the assistance and advice of all those on whom her husband most relied, being (1) the said Mr James Adam Young, his nephew and confidential clerk and his probable successor in business, who is ready to give his services without seeking any appointment as tutor; (2) the said Mr Peter Hunter, who has for twenty years held a power of attorney from the deceased in connection with the management of his business; (3) Messrs Linklater & Company, the deceased's London solicitors; and (4) Mr Charles Boyd, solicitor, Coupar-Angus, his solicitor in Scotland. The respondent on 12th October last applied for appointment to the office of executrix-dative qua relict of the deceased, and in that capacity she will find caution for the whole amount of the moveable estate. Her own personal interests are co-incident with those of the pupil. In these circumstances the present petition to have a tutor appointed to act along with the respondent, or to have her ordained to find caution is unnecessary and vexatious. Any appointment made under the petition would lapse by the pupil's attaining to minority in less than a year.”

Argued for the petitioners—Two questions were involved—the present custody of the child, and the custody of her estate. The widow was well qualified for the first office, but not for the second, in which she required the assistance of a business man.

Argued for the respondent—The widow was qualified to act alone, and nothing was alleged

Page: 129↓

against her which if she had been appointed by her husband would have caused the Court to remove her from office. Whoever was appointed to wind up the deceased's estate would require to call in professional aid.

At advising—