Scottish Court of Session Decisions

George Keith of Usan, near Montrose, was appointed curator bonis to Miss Jane Ann Keith, residing at Whitehouse, Inveresk, on 5th June 1877. He had been preceded in the office by John Burness, surgeon in Montrose. Part of the ward's estate consisted of “the sum of £2000 secured over estate of Lochiel, conform to (1) bond and disposition in security for £22,000, by Donald Cameron, Esq. of Lochiel, and his trustees, dated 10th September, 9th, 12th, 22nd, and 28th October 1818; (2) notarial instrument thereon recorded in the General Register of Sasines 2nd June 1855; and (3) assignation thereof to extent of £2000 in favour of John Burness, sometime surgeon in Montrose, as the then ‘ curator bonis to the said Jane Ann Keith, and his successors in that office, for behoof of the said Jane Ann Keith, and to the disponees and assignees of him and them, dated 20th February 1857, and recorded in the General Register of Sasines 18th March 1857, and which sum so secured still forms part of the curatory funds of the said Jane Ann Keith.’” The borrower being prepared to pay the loan, objected to make payment until the curator bonis completed a feudal title in his person. The curator thereupon presented a note to the Accountant of Court for his opinion, in which he stated the following questions—“(1) Whether the curator can, in the circumstances, grant a valid discharge of the said bond and disposition in security to the extent foresaid, without special powers to discharge the bond or feudally completing his title? (2) Whether warrant for completion of the title by expeding and recording a notarial instrument in the present curator's name should be applied for, or what other course adopted in order to secure payment of the amount due?”

The Accountant's opinion was as follows—“The point raised by the first question has not, so far as the Accountant is aware, been definitely settled by the Court. In the case of Wills' curator bonis, Brand, 20th June 1879, 6 R. 1096, the Court held that special powers were not required by a curator bonis in order to discharge a bond taken in name of the ward—a lunatic, prior to her incapacity and to the appointment of the curator bonis. In that case the bond being in name of the ward, and she being alive, no title required to be made up.

“The present case is different from Wills’ in that the person in whose name the assignation is taken is dead. It may therefore be held that the curator stands somewhat in the relation of a trustee for his ward, and that accordingly a title must be completed in name of the present curator bonis ‘as successor in office of the said deceased Dr John Burness. It may, on the other hand, however, be held that the curator is merely the hand of the ward, and that as he has power without special authority of the Court to discharge a bond taken in name of his ward, he has also power to discharge a bond taken in name of his predecessor in office when it is expressly set forth in the deed that the funds were the ward's and were invested for her behoof.

Page: 622↓

Petitions are occasionally presented to the Court for authority to complete titles to bonds in like circumstances to the present, and powers are granted; but the Accountant is inclined to be of opinion that if the principle of the decision in Wills' case be followed, special powers to complete a title and discharge, as desired by the borrower's agents, are not necessary, and that a discharge by the curator bonis of the debt due to the ward is sufficient.

If powers to complete titles are necessary, the Accountant is of opinion that the title should be completed in name of the ward and not in the name of the curator bonis.”

The curator thereupon presented a note to the Court for authority to complete a title and grant a discharge of the bond, upon which the Lord Ordinary officiating on the Bills ( Kincairney) pronounced the following interlocutor:—

“The Lord Ordinary officiating on the Bills having considered the note No. 67 of process, Refuses the same as unnecessary, and decerns: Dispenses with the reading of this decree in the minute-book: Finds that the expenses of the note and relative procedure, as the same shall be taxed by the Auditor, form a proper charge against the ward's estate,” &c.