Scottish Court of Session Decisions

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Cite as: [1901] SLR 38_754, [1901] ScotLR 38_754

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, July 3. 1901.

38 SLR 754

Sim

v.

Robertson.

Subject_1Tutor and Pupil
Subject_2Parent and Child
Subject_3Appointment of Tutor Resident in England to Act Jointly with Mother
Subject_4Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 2.
Facts:

A father died intestate, domiciled in Scotland, and survived by a widow and pupil children. The widow presented a petition for the appointment of a relative of her own who was resident in England to act jointly with her as tutor to her children. She had no relatives in Scotland, and the father's only relative was a married woman, who was resident in Scotland. The Court granted the petition, on condition of the person appointed granting a bond prorogating the jurisdiction of the Court of Session.

Headnote:

Patrick Sim Died On 23rd November 1900, Intestate And Domiciled In Scotland, And Was Survived By A Widow And Three Pupil Children. His Widow Was Decerned His Executrix-dative, And His Estate Amounted To About £65,000.

By antenuptial contract of marriage between mr and mrs sim, mr sim provided an annuity of £250, and certain small sums for mournings and aliment for his widow, which she accepted in full of all her legal rights. The antenuptial contract made no provision for children.

In contemplation of the possibility of making a claim for her jus relictce, in which case her interest as an individual would be adverse to her pupil children, Mrs Sim presented a petition on 25th May 1901 for the appointment of a tutor to them in terms of the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 2.

The petitioner, who was described as residing in Loudon, averred that Mr Sim's only surviving relative was his sister, a married woman, who lived in the north of Scotland, and that she herself had no relatives in Scotland. The petitioner craved the Court to appoint John Barnes, manager of the London and Provincial Bank, Limited, at Walthamstow, near London, and residing at 278 Hoe Street, Walthamstow, to act jointly with the petitioner as tutor to her pupil children. Mr Barnes was the petitioner's cousin.

Answers were lodged by Mr Sim's surviving sister, in which the facts averred in the petition were admitted.

Argued for the petitioner—A domiciled Englishman might be appointed in such a case if he was willing, as Mr Barnes was, to prorogate the jurisdiction of the Court of Session, and have an address in Scotland at which he might be cited— Macdonald v. His Next-of-Kin, June 11, 1864, 2 Macph. 1194; Dalhousie, February 22, 1698, 4 Br. Sup. 405. The proper course was to appoint the person nominated by the mother— Martin v. Stewart, December 1, 1888, 16 R. 185.

Argued for the respondent—The proposed tutor being a near relative of the mother, his appointment was undesirable, since there was to be a conflict of interest between the mother and her children. Not being resident in Scotland he was ineligible for the office. Even in choosing curators no-one beyond the jurisdiction of the Court could be chosen except in very peculiar circumstances— Fergusson v. Dormer, January 25, 1870, 8 Macph. 426; Thoms on Factors, 43; Robertson, December 3, 1846, 9 D. 210.

Judgment:

Lord President—The proposal made in this petition that a person who is out of the jurisdiction of this Court should be appointed as co-tutor with the petitioner is somewhat unusual. But the circumstances are unusual, and in dealing with such a case our duty is to have regard primarily to the benefit of the pupil. The Guardianship of Infants Act 1886 provides that in a not very different matter the wishes of the mother should be considered.

The statement made by the petitioner is that there are no relatives in Scotland suitable for the office, the only relative of the father in Scotland being a married woman resident in Huntly. Under these circumstances the petitioner suggests that her cousin, a banker in England, should be appointed as tutor. The position which this gentleman holds is evidently one of trust and responsibility, and it is reasonable to suppose that his advice would be valuable as a tutor. Further, it is desirable to have someone who will act harmoniously with the petitioner, who seems to think that her cousin would do so—and there is no reason to suppose that he would not. Under these circumstances it seems to me that the proposed appointment would be

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the best in the interest of the children. A] though such an appointment is unusual the cases quoted by Mr Younger prove that it is not without precedent, the difficulty as to jurisdiction being got over by the person appointed lodging a bond pro rogating the jurisdiction of the Court. It appears to me that if the gentleman named is prepared to do this, we should appoint him in the special circumstances of the case.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court pronounced this interlocutor:—“Appoint John Barnes, residing a 278 Hoe Street, Walthamstow, manage of the London and Brazilian Bank Limited, Walthamstow, to act as tutor to Patrick Wood Sim, Catherine Sim and Edward William Boyd Sim, jointly with Mrs Catherine Jane Barnes or Sim the petitioner, and decern: the said John Barnes always granting a bond of prorogation in the usual fora to the satisfaction of the Clerk of Court before extract.”

Counsel:

Counsel for the Petitioner— Younger Agents— Waddell & M'Intosh, W.S.

Counsel for the Respondent— M'Lennar Agents— Macpherson & Mackay, S.S.C.
1901