Scottish Court of Session Decisions

The facts of this case are concisely summarised in the opinion of the Lord Ordinary (Kincairney) subjoined—

“This petition by Mrs Dewar for the appointment, of a curator bonis to her husband Dr Dewar, at present an inmate of Saughton Hall Asylum, was presented on 10th June last.

On 2nd July answers were lodged for Dr Dewar, which are referred to.

From the petition and answers it appears that Dr Dewar had been removed to Saughton Hall Asylum under warrant of the Sheriff on 3rd April 1890; that on 20th May he was, on the instructions of the petitioner's agents, visited by Dr Grainger Stewart and Dr Heron Watson; on 28th May by Dr George W. Balfour, and on 31st May by Dr Littlejohn, whose certificates are appended to the petition, and that on 28th June he was visited by Dr Clouston and Dr Byrom Bramwell, whose certificate is appended to the answers.

The certificates of these gentlemen disclose some difference of opinion about Dr Dewar's mental condition. Dr Grainger Stewart and Dr Heron Watson state that they felt it impossible, at the date of their examination on 20th May, to grant a certificate for the appointment of a curator bonis. They recommended delay and a further examination after the lapse of a month or six weeks for the purpose of deciding upon the necessity of appointing a curator.

Drs Balfour and Littlejohn express the opinion in general but unqualified terms that Dr Dewar was of unsound mind, and incapable of managing or of giving directions for the management of his affairs.

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Drs Clouston and Bramwell state that on their visit they found Dr Dewar coherent and acute in regard to business matters, but taking into account the whole of the facts elicited at a prolonged examination of his mental condition, they felt unable to give a certificate that he was yet fit to manage his affairs or give directions for their management.

Dr Dewar's estate is of considerable amount. It consists of personal estate variously invested, and amounts I understand to £40,000 or thereby.

The case was debated before me, and the respondent's counsel moved that I should make a remit to the Sheriff to direct an inquiry as to Dr Dewar's state of mind, and report.

I considered the case so delicate and important that I should then have reported it to the Inner House, but I thought, considering the differences in the medical certificates, that the case was hardly prepared to be submitted to their Lordships.

I rather understand that the course of making a remit to the Sheriff suggested by the respondent's counsel has not of late years been regarded very favourably, and I considered that I had hardly a right to devolve on the Sheriff a duty which appeared to be my own, and ultimately I came to think that the safest step I could take was to make a remit to a medical gentleman who had not been employed by either party, and whose opinion I could regard as of weight and authority.

Having ascertained that Sir Arthur Mitchell had not been consulted in the case in such a way as to affect his absolute neutrality, I, on 9th July, remitted to him to examine the petition and answers and productions, and thereafter to visit Dr Dewar, and to report whether in his opinion Dr Dewar was in such a state of mental derangement as to render him incapable of managing or of giving directions for the management of his affairs. Sir Arthur Mitchell has now returned a report, stating his opinion ‘without hesitation or difficulty’ that Dr Dewar is at present of unsound mind, and as a consequence incapable of managing or of giving directions for the management of his affairs.

Sir Arthur Mitchell's report is expressed in general terms, but he was good enough to call on me and to explain his views in more detail. It appears that Dr Dewar is, in Sir Arthur's opinion, subject to delusions related to what is known as spiritualism, of such a nature as to render him quite an unsafe guardian of his own property, and which might render him liable to be very readily imposed on by designing people who were aware of his weakness. He entertains, besides, Sir Arthur informs me, feelings of mistrust towards his family which cannot be altogether disregarded.

There have been submitted to me certain documents which were put in the hands of Sir Arthur Mitchell, and I refer in particular to notes of a seance, held in Dr Dewar's house at Drylaw, written by him, and to three volumes also written by him in pencil, purporting to consist of letters addressed to him, although they are really written by himself. It would not, I think, be convenient to describe these documents in this note, but, to my mind, they thoroughly corroborate Sir Arthur Mitchell's opinion, and indeed, leave no room for doubt about the serious character of Dr Dewar's delusions.

The agents for Mrs Dewar and for Dr Dewar have been again heard, and it has been strongly pressed, on behalf of Dr Dewar, that he showed an intelligent comprehension of his own affairs—which seems to be true—and that he could safely be trusted with them, and in particular, that he could not, or ought not, to be deprived of the control of his own property without the verdict of a jury obtained on a brieve from Chancery, under the provisions of the 101st section of the Court of Session Act.” [This contention was not put forward in the answers originally lodged; but by a minute, lodged in process by the agents of the respondent, the demand was made in accordance with the respondent's own written instructions, dated 12th August].

“I have felt the force of this contention, but what, as it appears to me, I have to consider is, whether it is right and safe that Dr Dewar should be left without control in the meantime, and until the meeting of the Court.

“A brieve from Chancery cannot proceed at present; and while I do not doubt that Dr Dewar has an intelligent knowledge of his own property, as, indeed, he has proved, and is probably a gentleman, in many respects, of ability, still I agree in Sir Arthur Mitchell's view that his considerable property is not safe under his control so long as he remains under the influence of the singular hallucinations which at present possess him.

I think, therefore, that my duty is to appoint a curator bonis. My appointment is, of necessity, substantially, though not nominally, an interim one, if it shall hereafter appear to the Court that the condition of Dr Dewar's mind should be submitted to the consideration of a jury. It rather appears to me, however, to be better for Dr Dewar that a curator bonis should be appointed than that his present state of mind should be submitted to a jury. For should he shortly recover—and I have not heard anything which precludes that hope—it will be much easier to restore to him the full control of his affairs than it would be if he were found by a jury to be insane.

I need not say that of course either of the gentlemen suggested by the parties is perfectly qualified for the office of curator; but as matters stand I am precluded from availing myself of the assistance of either.

The following authorities were referred to— Spiers, 4th July 1851, 23 Jurist, 610; Henderson, 17th July 1851, 23 Jurist, 668; Forsyth, 19th July 1862, 24 D. 1435; Irving v. Swan, 7th November 1868, 7 Macph. 86; Downs v. Downs, Shand's Practice, ii. 1008.

I do not think that cases bearing on the testamentary capacity of persons alleged to be of unsound mind are applicable.”

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Accordingly on 15th August the Lord Ordinary appointed Mr Harry Cheyne, W.S., to be curator bonis to the respondent, and eodem die a reclaiming-note against this interlocutor was presented.

In anticipation of the discussion upon the reclaiming-note two additional medical opinions were obtained at the instance of the respondent's agents.

The first of these was given jointly by Drs Howden and Ferguson upon 23rd October, and inter alia contained the following passage—“We found him calm and self-possessed in manner, of a high degree of intelligence, with a mind widely and accurately informed, and able to reason on many subjects in a clear and rational manner. He appeared thoroughly familiar with the condition of his financial affairs, and alive to his interest in regard to them.” And the conclusions of these gentlemen upon the question of the respondent's mental condition are summarised thus—“We are of opinion (first) that Dr Dewar is a person of unsound mind; (second) that if at large, Dr Dewar might be dangerous to the persons who are the object of his suspicions, and that the nature of his delusions unfits him to treat with fairness the members of his own family and household, and renders him liable to be biassed in a similar manner against others; (third) that nevertheless he is capable of clearly appreciating his worldly interests in many ways; (fourth) that if management of his affairs includes a just and natural regard to the interests of his family, we do not consider he is worthy of being entrusted with their management; but (fifth) that we are not prepared to say that his mental condition as ascertained by us incapacitates him from administering his affairs in other respects.”

The second opinion was that of Dr Yellowlees, who while saying that he found Dr Dewar “acute and intelligent in conversation,” concluded as follows—“I believe that Dr Dewar is conversant with his business affairs and investments, and that he could give directions concerning them, but such directions would be influenced or swayed or determined by the presence of delusions as to relatives or others conspiring against him, or desiring to injure him, and might be influenced by insane ideas as to spiritualism and its devotees, supposing Dr Dewar to entertain such delusions and ideas.”

Argued for reclaimer—(1) To deprive the respondent of the management of his property it was not enough that medical certificates should be produced in evidence of mental incapacity; he was entitled to retain the management until found incapable by verdict of a jury upon a brieve of cognition issuing from Chancery in terms of section 101 of Court of Session Act 1868. [ Lord President—But the right of suing out a brieve from Chancery rests with his relatives alone, and we cannot compel them to institute proceedings with that object. Suppose they will not do so, and the Lord Ordinary is convinced upon the evidence before him that the respondent is incapable of managing his affairs, are we excluded from making an appointment?]—That question was considered in the case of Bryce v. Graham, 6 Sh. 425, and in House of Lords, 2 W. & S. 481, and 3 W. & S. 323, and although the decision there upon the remit to the Court of Session was adverse to the present contention, that decision was given by a narrow majority. The minority was a strong one, and the decision itself is questioned in Fraser's Parent and Child. In any case the Court of Session Act 1868, sec. 101, now prescribed the procedure, and if there was any reason to suspect that a lunatic was not duly protected the Lord Advocate could interfere under sec. 81 of 20 and 21 Vict. c. 71. [ Lord President—The question really was, whether the Lord Ordinary was justified by the evidence before him in making the appointment in this case.] (2) In this case the evidence did not warrant the appointment. The fact that a person was of unsound mind was not enough, for the particular unsoundness may not interfere with an intelligent view of business matters. In Henderson, 14 D. 11, the Court on this ground refused, and in Forsyth, 24 D. 1435, recalled an appointment. So also in the cases of Nisbet's Trustees, 9 Macph. 931, and Ballantyne v. Evans, 13 R. 652, the wills of persons of partially unsound mind were sustained. Now, in this case, the reports of Drs Balfour and Littlejohn merely alleged unsoundness in general terms, so did that of Sir A. Mitchell, which was further invalidated by the fact that it was based on ex parte statements, while all reports agreed that the respondent was exceptionally acute and clear upon all matters of business whatever delusions he may entertain upon spiritualism. The cases of Laidlaw, 8 D. 426, and Lockhart and Ross, 19 D. 1075, were also referred to.

Argued for the petitioner—No case quoted showed that a curator had been refused by the Court when the person of unsound mind was actually resident in an asylum. Here he was undoubtedly unsound in mind in the sense of sec. 101 of Court of Session Act. The reports of Drs Howden and Ferguson and Dr Yellowlees, which were the most recent, disclosed not a condition of hallucination upon one immaterial point, but a generally diseased condition of mind. The private papers recovered showed this also, and although they were not regularly in evidence they could be proved. But Dr Dewar's delusions in regard to spiritualism were in evidence, and the special danger to his patrimonial interests from this source consisted in the fact that complete mental ascendancy was or might be obtained over him by the “medium” through whom he experienced those spiritualistic manifestations of which he spoke. It would be, therefore, competent enough for his relatives to sue out a brieve of cognition from Chancery under sec. 101 of the Act, but that process the relatives did not desire to adopt. The inquiry before a jury would give both to his relatives and to the respondent much pain, and would probably injuriously affect the latter and delay his recovery, while if he did recover he would again require to have his sanity tried in a

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declarator of reconvalescence. This process was also competent, as was authoritatively decided in Bryce v. Graham, and the expediency of adopting it was obvious in this case, where the respondent was apparently upon the verge of recovery, for the recal of the appointment also was short and expeditious. It is to be noted that the fact of the respondent being in an asylum put an onus upon him to prove mental soundness to the extent of managing his affairs, but no medical certificate produced went so far — the most favourable merely counselled delay.

At advising—