Scottish Court of Session Decisions

Lord President—This is certainly a case of some novelty, and there can be no doubt that it is extremely desirable that the powers sought should be granted if we have power to do so. The heir of entail in possession is a gentleman of seventy-three, who we have been told was labouring under the mental incapacity from which he still suffers at the time of his succession to the entailed estate, so we are not dealing with a case in which the heir had been in possession and had had the opportunity of providing for his wife and younger children before he was overtaken by mental illness. It might have been said in that case that it was for him to decide whether he should make a provision for his wife and younger children, and that he had decided not to do so. That would at all events have founded an argument against granting such an application; but this unfortunate gentleman was subject to this mental incapacity when he succeeded, and he has therefore never been in a position to consider for himself whether he should or should not make a provision. In these circumstances of the case one can hardly doubt that if he had been spared in mental health, with a wife and family of six children, he would have made some provision for her and the younger children at all events. It appears that the two eldest sons both consent, and indeed desire, that the authority sought should be granted, and there is a great probability that the estate will descend to one or other of these gentlemen. In these very special circumstances it appears to me that we should grant the power sought, the alternative being that this lady if and when she becomes a widow would be left without any provision whatever, and that the younger children would be in the same position. It seems to me that there is no violation of principle in granting the prayer of the petition under these exceptional circumstances.

Lord M'Laren—I am of the same opinion. It would be unfortunate for the interests of the family if a guardian were never able to exercise a discretionary power—if the powers of a guardian were confined to the payment of debts and performance of contracts. It is quite settled in practice, and it is recognised in the Pupils Protection Act, that the Court may grant extraordinary powers to curators appointed by itself, but it is perhaps right to say that in my view I should not be disposed to authorise the curator bonis of a lunatic to exercise a discretionary power when there was much uncertainty as to how it ought to be exercised. In the present case this difficulty does not arise, because we are all agreed that there is only one way in which a reasonable man could decide the first question which is put to us, viz., whether the gentleman under curatory ought to provide for his widow and younger children—I mean to perform the natural duty which lies upon him of providing for their maintenance after his death out of his estate. Then I think also that we are relieved in this case from considering another element of difficulty, viz., the amount of the provision. If this had depended upon a power in the deed of entail, it might be said that the entailer had given very large powers which he did not intend to be always exercised to the full extent, and that the curator should exercise a discretion as regards the amount. The Aberdeen Act, while not giving any absolute right to the widow or children independent of the will of the husband and father, assumes that the Legislature recognised the provisions there authorised as being reasonable and suitable. No doubt the heir is not compelled to give anything, yet I cannot suppose that the Legislature would authorise larger provisions than what would be considered so reasonable as not to be an encroachment on proprietary rights of subsequent heirs of entail.

Lord Kinnear—I agree with your Lordships, and I also quite agree with Lord M'Laren that there might be cases in which we should have a much more difficult question to consider when asked to grant special powers of this kind than we have at present, and in particular if there were any serious question as to whether a reasonably prudent man would in the particular circumstances of the case have granted a provision in favour of his widow and children, or if it could be said that the heir in possession had had opportunity for granting provision while he was still sui juris and had not chosen to do so, we probably should have to consider whether the Court ought to interfere. But in the present case what we are asked to do is to do for a man who is suffering from incapacity what any reasonable man who was sui juris, and who took an ordinarily prudent view of his family obligations, would certainly desire to do for himself; and we are asked to do that with the concurrence of those members of his family who would have an interest to object to it if there were anything unreasonable in the proposal, and who say they are perfectly satisfied the thing should be done.

I rather think that the application is rested not only on the Aberdeen Act but on the express provisions of the entail, but I do not think that makes any difference or displaces anything which Lord M'Laren has said, because the particular entail fixes the limit of the provision in the same way as the Aberdeen Act, and because the proximate heirs are satisfied.

Lord Adam was absent.