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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Simpson Petitioner [1891] ScotLR 28_910 (18 July 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0910.html
Cite as: [1891] ScotLR 28_910, [1891] SLR 28_910
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SCOTTISH_SLR_Court_of_Session
Page: 910↓
Court of Session Inner House First Division.
Facts:
The wife of an inmate of a lunatic asylum presented a petition for the appointment of a curator bonis to her husband and suggested the name of a chartered accountant. The husband's eldest brother being his nearest agnate of full age opposed the petition as unnecessary on the ground that he had obtained a brieve for cognition with the view of having himself appointed his brother's tutor-at-law. The Lord Ordinary reported the case. The Court, pending the result of the cognition, appointed the said nearest agnate curator bonis.
Mrs Barbara Macdougall or Simpson, wife of Donald Simpson, formerly wine and spirit merchant, Lochalsh Road, Inverness, now an inmate of Saughtonhall Asylum, Edinburgh, presented a petition to have a curator bonis appointed to her husband, and suggested the name of Mr Robert Falconer Cameron, C.A., Inverness. There was one child of the marriage alive, a son only a year old. After him the nearest male relations of Donald Simpson were his two brothers Thomas and John, who lodged answers in which they averred that it was for the interest of their brother and his family that the business should be kept up, that the elder of them had hitherto attended to it, and further, had obtained a brieve from Chancery ordering a cognition with a view to his being appointed tutor-at-law to their brother, that in these circumstances the appointment of a curator bonis was unnecessary, and that in any case a chartered accountant was not a suitable person to manage such a business.
The Lord Ordinary ( Low) reported the case to the First Division.
“ Note.—This is a petition for the appointment of a curator bonis to Mr Donald Simpson, wine and spirit merchant, Inverness, presented by his wife on the ground of his insanity.
Answers have been lodged for Thomas Simpson and J. A. Simpson, brothers of Donald Simpson. The respondent admit the insanity of their brother, but aver that his business is a ‘counter’ business, and could not be carried on successfully by a chartered accountant—which the curator suggested by the petitioner is—or by any person not practically acquainted with the trade. The respondents then say that they have come to the conclusion that ‘Thomas Simpson should, in the interest of his brother and his family, exercise his right as legal guardian of the ward, and assume the management of the estate.’ “
Thomas Simpson is the nearest agnate of Donald Simpson of full age, and he has obtained a brieve from Chancery under
Page: 911↓
It therefore appears that there is no dispute as to the insanity of Donald Simpson, but that the only question is, who is to have the management of his estate? It was stated by the counsel for the petitioner that there are serious objections to the management being entrusted to the respondent Thomas Simpson.
I am informed that a precept has been issued under the brieve, in terms of section 1 of the Act of Sederunt of 3rd December 1868, fixing the 18th inst. as the first diet of compearance. At that diet the claim of Thomas Simpson to the office of curator will, I apprehend, be brought up under section 2 of this Act of Sederunt.
In these circumstances I doubt if it would be proper for me to appoint a curator; but as there is no question that Donald Simpson is insane, and as the cognition is only brought for the purpose of enabling Thomas Simpson to obtain the management of the estate, it appears to me that the best course is to report the case.”
The petitioner lodged a note objecting to the appointment of her brother-in-law as tutor-at-law, on the ground that the business had not thriven in his hands, and that there were questions in dispute between him and her husband. Upon the competency of appointing a curator bonis in the circumstances, the cases of Bryce v. Grahame, January 25, 1828, 6 S. 425 ( espec. p. 431), and Irving v. Swan, November 7, 1868, 7 Macph. 86, were referred to.
At advising—
Counsel for the Petitioner— Blair. Agents— Forrester & Davidson, W.S.