Scottish Court of Session Decisions

Walter Hannah, Surveyor to the Board of Trade in Glasgow, died at Helensburgh in 1889, leaving a trust-disposition and settlement dated 28th July 1887 by which he conveyed his whole means and estate to trustees for behoof of his wife in liferent and the children of the marriage in fee, the shares to vest in the case of sons upon their obtaining majority, “providing and declaring that in the event of my wife predeceasing the said period of vesting of said residue or shares of residue in my child or my children respectively, my trustees shall lay out and expend in maintaining, clothing, and educating my child or children, or otherwise for his or her or their behoof and benefit, as may appear best to my trustees, the whole or such part as my trustees may deem proper of the yearly income that may be realised by them from the share of said residue and remainder of my means and estate destined to the said child or children respectively; declaring further, that my trustees shall have the fullest control in reference to the party to whom the said annual proceeds or part thereof are to be paid for application as aforesaid, and the manner in which the application thereof is to be made.”

The truster made no appointment of tutors for his children.

He was survived by one son born in 1888, and by his wife Mrs Jane Skirving or Hannah, who after her husband's death went to Toronto, Canada, where she died upon 1st October 1891, leaving a will of that date containing the following clause—“I hereby appoint Miss M. Fenwick of No. 33 Beaconsfield Avenue, Toronto to be the guardian of my said son Walter John.”

At the request of the trustees of Mr Hannah, who represented that her appointment as guardian was invalid, Miss Fenwick brought the boy to this country in 1892, and he was placed by the trustees with a Mrs Macnab, a widow lady.

In May 1893 Miss Fenwick presented a petition to the First Division praying to have him delivered up to her on the ground that she was by his mother's appointment his tutor. She referred to the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), which by sec. 3, sub-sec. 1, provides—“The mother of any infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant be then unmarried), and where guardians are appointed by both parents they shall act jointly.” Section 8 of the Act provides—“In the application of this Act to Scotland the word guardian shall mean tutor, and the word infant shall mean pupil.”

The answers for the trustees contained the following statements—“The respondents deny the validity of the petitioner's appointment as guardian to the child. The deceased Mrs Hannah died domiciled in Scotland, and it was incompetent for her to appoint the petitioner, who is a domiciled Canadian, to be guardian to her child whose domicile is in Scotland. Even were the nomination a valid one, it would not entitle the petitioner to the custody of the child in view of the provisions of the settlement of the deceased Walter Hannah, which vest the respondents with the fullest control over the residence of the child. The respondents were, however, willing, if they could do so consistently with their duty under the said settlement, to give effect to the wishes of his mother by placing the child with the petitioner. Under the care of Mrs MacNab the child is being maintained and brought up to the respondents' entire satisfaction at a cost of about £80 per annum. The respondents accordingly offered by letter, by their agents Messrs A. and G. Young, writers, Glasgow, to the petitioner's agents, Messrs Newlands and Warner, writers, Glasgow, dated 24th February 1893, to allow the petitioner to have the custody, subject to the adjustment of details, if the petitioner would accept the same terms as to allowance as Mrs MacNab, on condition (1) that she would undertake not to remove the child beyond the jurisdiction of the Scottish Courts; and (2) that as she had no home of her own in Scotland, she would furnish them with information as to her financial position, and satisfy them that it was such as would afford them reasonable assurance and guarantee that the money would be expended for the sole benefit of the boy. The petitioner, however, through her said agents, declined to give the respondents any information as to her means, and expressed herself as unable to undertake the care of the child at a less payment than £150 per annum. The respondents believe and aver that the petitioner is unable to undertake the care of the child except upon the condition that she herself is supported, at all events to some extent, by the money to be paid for the child's maintenance and up bringing.”

Argued for the petitioner—1. A domiciled Canadian was not an alien, and was not disqualified for the office of tutor to a Scotch child either at common law or under the Guardianship of Infants Act. She was in a similar position to that of a person resident in England—Bell's Prin., sec. 2073, and cases there cited. Hadden, February 27, 1822, 1 S. 397, referred to by More in his notes to Stair, p. 35, was special. Here the petitioner's position was strengthened by the fact that she was a tutor-nominate, not a tutor-at-law. Section 2078, relied on by the respondents, referred to tutors-at-law. 2. She was sole tutor under the Guardianship of Infants Act, the Court having no power to conjoin another with a mother's nominee. Accordingly she alone was entitled to the custody of this child.

Argued for the respondents—1. The nomination of a domiciled Canadian was invalid. Even at common law it was held at least desirable that a tutor should be resident in Scotland—Bell's Prin., sec. 2078. By section 12 of the Guardianship of Infants Act

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tutors to Scotch children appointed under the Act came under the Pupils Protection Act, and were subject to the control of the Accountant of Court. Accordingly, no person could be appointed tutor who was not subject to the jurisdiction of the Scottish Courts, and whom the Court would not have appointed. [ Lord M'Laren—Is the appointment not invalid on the ground of deathbed?] 2. The petitioner had not an absolute right to the custody of this child. The trustees had under his father's trust-settlement large powers of controlling his residence and upbringing. Besides, the welfare of the child must be looked to, and he was not to be given up to a person about whom, however trustworthy, the trustees knew nothing, and who refused to furnish further information as to her means and position.

At advising—