Scottish Court of Session Decisions

A petition was presented by William George Webb, colour-sergeant, Second Battalion Black Watch (Royal Highlanders), for himself and as tutor and administrator-in-law for his pupil daughter Catherine Alice Cleland Webb, in which the petitioner prayed the Court to authorise the trustees of the deceased James Cleland, LL.D., Glasgow, to make payment to him of a portion of the residue of Dr Cleland's trust estate, bequeathed in terms of his trust-disposition and settlement to the petitioner's pupil daughter. Alternatively, the petitioner sought to have the trustees authorised to make payment to him of the free income of his daughter's share

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of Dr Cleland's estate for her suitable maintenance and education.

The petitioner's domicile was English.

Dr Cleland's trustees lodged answers, in which they maintained that the petition was incompetent, on the ground that by “the law of England a parent is not entitled, without special appointment as guardian, to receive payment of a legacy on behalf of his infant child, to give a good discharge for such legacy, or to sue as guardian of his infant child in respect of any such legacy.”

The petitioner's daughter was six years of age; her share of Dr Cleland's estate amounted to over £1200.

On 13th June 1903, after hearing counsel for the petitioner—who referred to the cases of Edmiston v. Miller's Trustees, July 11, 1871, 9 Macph. 987, 8 S.L.R. 645, and Seddon, March 18, 1893, 20 R. 675, 30 S.L.R. 526—the Court delayed consideration of the petition to allow the petitioner to make application to the English courts to be appointed guardian to his daughter.

The petitioner took out an originating summons in the Chancery Division of the High Court of Justice in England to be appointed guardian, and offered to give an undertaking in writing that he would pay into Chancery any funds which he received from the trustees on behalf of his daughter.

The petitioner was not appointed guardian, Mr Justice Kekewich, before whom the application was heard, holding that the appointment could not be made unless it was secured to his satisfaction that the money would be paid into Court. His Lordship was ready to pronounce an order giving the trustees liberty to pay the money into Court, but before doing so he directed the petitioner's solicitors to inquire whether the trustees would act upon his order.

In reply to inquiries the trustees' agents wrote that as the trust was a Scotch trust, not subject to the orders of the English courts, they were anxious to know what discharge they would obtain to protect them against being called in question by the infant after she attained majority if they paid her money into the English Court.

The trustees being unable to undertake unconditionally to implement the order proposed by Mr Justice Kekewich, the petitioner lodged a note for special powers in the present petition, in which, after narrating the facts stated with regard to the proceedings in England, he prayed the Court “to grant the prayer of the petition in so far as it craves payment of said income, or otherwise to direct the respondents as trustees foresaid to make payment of the trust funds into the English courts.”

At the calling of the note in Single Bills counsel were heard; the cases of Edmiston and Seddon, cit. sup., were referred to for the petitioner.

At advising—