Scottish Court of Session Decisions

This petition was presented by Mrs Alice Mitchell Willison, with the concurrence of

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three of her daughters who were in minority.

The petitioners set forth that Mrs Willison's husband Duncan Campbell Willison had died intestate, and without nominating tutors or curators to his children; that he had left five daughters, of whom three were in minority, and concurred in the petition, and two were in pupillarity; that as the said minor and pupil children were entitled to succeed to certain shares of their father's estate, it was necessary that a curator bonis and factor loco tutoris should be appointed to them respectively, and as the interests of the children were alike, it was expedient that the curator bonis appointed to the minors should also undertake the office of factor loco tutoris to the pupils.

The petitioners therefore prayed the Court to appoint Mrs Willison to be curator bonis to the minor children, and to be factor loco tutoris to the pupil children.

The petitioner Mrs Willison thereafter lodged a minute stating that she did not desire the office of guardian of her pupil children conferred upon her by the Guardianship of Infants Act 1886.

Section 2 of that Act provides—“On the death of the father of an infant, and in case the father shall have died prior to the passing of this Act, then from and after the passing of this Act the mother, if surviving, shall be the guardian of such infant, either alone, where no guardian has been appointed by the father, or jointly with any guardian appointed by the father. If no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother.”

Section 8 provides—“In the application of this Act to Scotland the word guardian shall mean tutor, and the word infant shall mean pupil.”

On 22d November 1890 the Lord Ordinary ( Stormonth Darling), having heard counsel for the petitioner on her motion for the appointment of curator bonis and factor loco tutoris to the children of the deceased Duncan Campbell Willison, reported the said motion to the First Division.

“ Note. — The petitioner Mrs Willison and her three minor daughters concur in asking that Mrs Willison (who is a widow) should be appointed curator bonis to the three minor petitioners, and factor loco tutoris to her two younger daughters, who are in pupillarity.

The petition does not refer to the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), but I called the attention of the petitioners to sections 2 and 8 of that statute, which seem to me to raise a serious obstacle to the appointment of Mrs Willison as factor loco tutoris to her pupil daughters. The statute in very absolute terms makes her their tutor, and I do not see how I could appoint her to be factor loco tutoris, which presupposes that there is no tutor. The petitioner Mrs Willison then lodged a minute stating that she did not desire the office of guardian to her pupil children conferred upon her by the Act. It seems to me that this does not remove the difficulty, seeing that she is willing to act in the substantially identical capacity of factor loco tutoris. Had she absolutely declined to act as guardian in any form, it would, I think, have been competent, under section 13 of the statute (taken in connection with section 12 of the same Act, and section 31 of the Pupils Protection Act), to appoint some other person as factor loco tutoris, and I have recently made such an appointment in another case, where the interest of the pupils seemed to require it. But I greatly doubt the competency of appointing a factor loco tutoris where there is in form no resignation of the office of tutor, and in reality no unwillingness to act.

It was pressed upon me by counsel for the petitioner that there was great convenience in the course proposed, inasmuch as, if appointed factor loco tutoris, Mrs Willison would, under section 11 of the Judicial Factors (Scotland) Act 1889 (52 and 53 Vict. cap. 39), become ipso facto curator bonis to the children when they attained minority, instead of having to present two applications to the Court for appointment in that capacity. I do not doubt that there would thereby be some saving of expense, but considerations of that kind will not justify the appointment if my view of the statute be correct. If therefore I had acted on my own judgment, I would have appointed Mrs Willison curator bonis to the minor children, and quoad ultra refused the prayer of the petition. But as the point is a new one, I have thought it best to report it. The peremptory character of a mother's appointment under the statute is dwelt on in the case of Macquay v. Campbell, 15 R. 784.”

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