Scottish Court of Session Decisions

The Rev. William Smith, minister of the Church of Scotland, died in India on 21st October 1889. His wife died about six months before him. There was one child of the marriage, John M'Gregor Smith, born in 1881. Mr Smith left a testament, in which he appointed certain trustees to carry out his last wishes, and to them he left his whole estate, both real and personal, “for the benefit of my son John M'Gregor Smith, now residing with Mr James Wilson, Dunfillan House, Crieff.” He appointed the trustees his executors, and expressed a desire that they should pay his mother £100 from his estate, and directed that she and his brother Alexander should have the liferent of a little house property belonging to him in Catrine. The will contained no appointment of a tutor, and gave no directions as to the guardianship or custody of the testator's child.

When Mr Smith died his son John M'Gregor Smith was with Mr James Wilson at Crieff, and the accepting trustees under the will—-the Rev. William Summers Sutherland and the Rev. James Muir Hamilton, both ministers of the Church of Scotland—continued to keep the boy where he was.

In November 1889 the present petition was presented by Mrs Catherine Smith, the boy's paternal grandmother, and others, his uncles and aunts, being, with the exception of one aunt who did not join in the petition, the whole surviving relatives.

They stated—“The petitioners are very desirous that the custody of the said John M'Gregor Smith should be entrusted to his grandmother, the petitioner Mrs Catherine M'Master or Smith. They believe it would be for his benefit to be placed under the guardianship of his grandmother. They further believe and aver that the estate is not sufficient to bear the expense of his board and education at Crieff. The available income, it is believed, amounts to about £40. They are satisfied that if he were living with his grandmother, and educated in Glasgow, the expense of his upbringing and education could be provided out of the income of the estate, and that such an arrangement would be in every way conducive to his interests and welfare.”

The petitioners therefore prayed the Court to find the petitioner Mrs Catherine Smith entitled to the custody of the boy John M'Gregor Smith, and to ordain Mr Wilson to deliver him up to her.

The trustees, Mr Sutherland and Mr Hamilton, lodged answers, in which they stated that “John M'Gregor Smith formerly resided for about a year with the petitioner Catherine M'Master or Smith, who then lived atEaglesham. Hisfather, however, the testator, sometime before his death thought it better to remove him from her care, and to place him under the care of the said Mr James Wilson, Dunfillan House, Crieff. The testator frequently expressed to the respondents after he did so his great satisfaction with the result of this arrangement. Mr Wilson and his wife were on intimate terms with the testator, and also with Mrs Smith, the boy's mother, and he has cared for the boy's benefit in every way. The boy is receiving a good education at the Crieff Academy. The cost of his board and education is about £53 a-year, and the respondents estimate that the income of his means, together with an annual sum of £14 which he will enjoy from the Ministers Widows' Fund till he reaches eighteen years of age, will be about £60. … It is explained with reference to the petitioner Alexander Smith, who is the boy's next male agnate, and his heir-at-law, and for whom the testator made the liferent provision already mentioned, that he is unfortunately in very infirm health, and is unable to maintain himself or to be a proper guardian for the boy.” They submitted

Page: 193↓

that there were no grounds in fact or law upon which the Court should ordain the boy to be delivered up to Mrs Catherine Smith.

The respondents also produced letters from the Rev. William Smith to Mr and Mrs Wilson, from which it appeared that the boy had been placed with Mrs Wilson by his mother's desire, and that the father had been more than satisfied with her “motherly care of him.”

At advising—