Scottish Court of Session Decisions

Upon 17th December 1872 James Balfour, W.S., Edinburgh, was appointed curator bonis of James Robert Lloyd, who was of unsound mind, upon the petition of his uncle Mr Joseph Lloyd.

He now presented a note for special powers under the Pupils Protection Act (12 and 13 Vict. cap. 51), sec. 7, to pay a certain portion of the surplus income of the ward to certain of his relations. The circumstances under which the application was made were as follows:—

At the time of the curator's appointment the estate of the ward amounted to £46,977, 2s. 5d. Upon 31st March 1887 the amount of the estate was £77,017, 17s. 2d. The annual revenue was £25,665, 5s. 11d., and the expenses of the wards' maintenance, management, &c., amounted to £609, 13s. 6d., leaving a surplus revenue of £1956, 12s. 5d. The ward had thus been under curatory since 1872. He had always been of weak intellect, having inherited this from the families of both his father and mother. He was forty-eight years of age, unmarried, and in good health. A request was made to the curator by the ward's next-of-kin, who were in poor circumstances, for an annual allowance out of the free surplus. These next-of-kin were stated to be the ward's cousins, children of his uncles, William Evans Lloyd and Joseph Lloyd, both deceased. The children of William Evans Lloyd were—1. Alfred Lloyd, cabinetmaker, 16 Copley Street, London, wages £1, 15s. per week; 2. Mrs Lucretia Sarah Lloyd or Saunders, a widow, residing in Globe Road, Mile End, Old Town, London, income £30 per annum, derived from leasehold property, the leases of which expired in five years; 3. Mrs Eliza Lloyd or Merman, residing at Leatherdale Street, Mile End, Old Town, London, income £26 per annum. She had a son aged seventeen, then earning 8s. per week.

There were two children of Joseph Lloyd, a boy aged fourteen and a girl aged eleven, who were supported by their mother, whose income amounted to £36, 8s. per annum, derived from leasehold property, the leases of which expired in three years.

The Accountant of Court reported—“The accountant is not aware of any case where allowances have been granted to next-of-kin so distantly removed as cousins.

“The son of William Evans Lloyd is in receipt of good wages as a tradesman, and both the daughters have for the present an income on which they have been able to live; but it is stated in a letter by the said Alfred Lloyd, dated October 1888, and addressed to the agents for the curator, that both Mrs Saunders and Mrs J. Lloyd have received notices from the freeholder to repair their respective houses, and that neither of them have the means of meeting the cost of such repairs; and further, that if they are obliged to give up the houses they will be left nearly destitute.

The curator has not stated any amount he would suggest as an annual allowance, and until judgment has been given on the principle involved, it may be premature to consider that.”

The Junior Lord Ordinary ( Wellwood) reported the matter to the Second Division of the Court. In his note he stated—… “I have not been referred to, and I do not know of any case in which the Court has in similar circumstances authorised payment of an allowance to collaterals out of a ward's estate. The only cases in which, so far as I know, such payments to persons, other than those whom the ward was legally bound to support, have been sanctioned, have been where the ward himself, when sane, was in use to make alimentary payments to the persons in question, or had clearly expressed his intention to do so. In the present case these elements are wanting—see Dunbar, March 7, 1876, 3 R. 554, and authorities there quoted in the accountant's opinion.”

The petitioner argued—This was a case in which the Court could exercise its discretion. In former cases the Court had exercised a similar discretion, as they had given payments out of the ward's estate which were not authorised by the terms of the Act under which such petitions were presented— Allan, November 13, 1869, 8 Macph. 139. Here there was a large surplus revenue, the persons to be benefited were in poor circumstances, were the near relatives of the ward, and were the persons entitled to succeed to the estate upon his death. It was not probable that the ward would ever recover his mental health. In the case of Dunbar there were other persons whose interests had to be considered besides the brother of the ward, whom it was proposed to benefit.

The Court remitted the cause back to the Lord Ordinary with instructions to refuse the note.