Scottish Court of Session Decisions

This was a petition presented by the Rev. Richard Hogan and others, the testamentary trustees of the late Thomas M'Crossan, for the custody of the said Thomas M'Crossan's two pupil daughters, aged seven and five respectively.

The petitioners averred that the testator, who died on 28th March 1898. had appointed them trustees for the execution of the purposes of his settlement, and had also nominated and appointed them to be tutors and curators to such of his children as at and after his decease might be in pupilarity or minority.

The petitioners further averred that after Thomas M'Crossan's death his pupil daughters, who up till that time had resided with him in Paisley, went to live with two paternal aunts in Londonderry, and that for some weeks the trustees paid board for the children to these ladies. The petitioners continued—“On 1st July 1898 the petitioners, as trustees and tutors foresaid, considered carefully what course should be adopted in the interest of said children with regard to their custody and education. They arrived at the conclusion that it was not judicious to leave the children in the custody of the Misses M'Crossan, and that it was better they should be brought to Scotland, where their education and welfare generally could be properly supervised by the petitioners. They ascertained that a Mrs Hogan, who resides in Stirling, and

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was an aunt of the mother of the said children, was prepared to receive them and take custody of them. Mrs Hogan is in very comfortable circumstances and has a large house, and in the petitioners' opinion would take great care of the children, and would be a very suitable custodian of them. She is the mother of the Reverend Richard Hogan, one of the petitioners, and she has residing with her a daughter who is a teacher in a Roman Catholic school. Said children have been brought up in the Roman Catholic religion.”

After commenting on the writing founded on by the respondents and referred to below, and pointing out that the copy furnished to them was unsigned and undated, the petitioners proceeded—“Besides founding on the said writing, Miss Anna M'Crossan is understood to assert that the deceased on his deathbed, and in presence of a Roman Catholic clergyman, expressed a wish that his children should be taken charge of by her. The petitioners have not been able to verify this assertion, but in any view, they submit that neither the said writing nor said expression of wish made upon deathbed can override the express appointment of tutors-nominate to the deceased's children, or affect the legal right and duty of said tutors to provide for the custody of the children according to their view of what is most in the children's interest.

The petitioners the said tutors-nominate, along with the other petitioners, are satisfied that the residence of the Misses M'Crossan is not a suitable residence for their wards. The Misses M'Crossan maintain themselves by keeping a boarding-house, and the petitioners consider that the children cannot there have the advantages and enjoy the social influences which are desirable. Further, it is obvious that while the children remain at such a distance from the petitioners as Londonderry it is impossible for the petitioners to know whether the children are receiving proper attention. The petitioners also doubt whether it is consistent with their duty to permit their wards to reside beyond the jurisdiction of the Court.”

In these circumstances the petitioners craved the Court to decern and ordain the respondents to deliver up the children to the petitioners.

Answers were lodged by Miss Anna and Miss Dora M'Crossan, Londonderry, sisters of Thomas M'Crossan, who averred—“In the spring of 1896, when the respondent Annie M'Crossan was in Paisley on a visit, her deceased brother, who was then a widower, arranged with her that she should take the said two children to reside with her in Londonderry, where they might he educated in the Convent school there as his son Thomas had been before. She accordingly took the said children to Londonderry in or about the month of April 1896, where they resided with the respondents and attended the said school. They visited their father when on holiday, and in the autumn of 1897, when they were residing with their father, it was the wish of the deceased and the intention of one of the respondents that the latter should come from Londonderry and take the children back. Neither of the respondents was able to go to Paisley at the time, and the children remained in Paisley with their father. On 10th March 1898 the respondent Annie M'Crossan received a telegram from her brother asking her to come that night and take the children home. She went accordingly to Paisley for the purpose of taking back the children to Londonderry. She remained for some days in Paisley, and while there her brother became ill and died on 28th March 1898. While on his deathbed the deceased repeatedly expressed his wish that the two children should be brought up by the respondents, and he handed to the respondent Annie M'Crossan the document which is quoted by the petitioners, and is herewith produced.”

The document in question was in the following terms:—“Disposal of my two daughters.—I wish them to go to Rosannah M'Crossan and Marie M'Crossan, now residing in Queen Street, L'Derry, Ireland; or failing them, to Margaret M'Crossan or M'Nally, now residing in 29 Bk. Sneddon, Paisley; also make Robert M'Nally, 29 Back Sneddon, one of my trustees.”

In the course of the argument, the import of which sufficiently appears from the opinion of the Lord President, it transpired that by a codicil executed on his deathbed, on 23rd March 1898, and duly tested, one of the respondents being a witness thereto, the testator had revoked the appointment of the said Robert M'Nally as trustee made under his settlement.

At advising—