Scottish Court of Session Decisions

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Cite as: [1909] ScotLR 714_1, [1909] SLR 714_1

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SCOTTISH_SLR_Court_of_Session

Page: 714↓

Court of Session Inner House Outer House.

Wednesday, January 6 1909.

[ Lord Skerrington.

46 SLR 714_1

Hutcheon and Others

v.

Alexander and Others.

Subject_1Judicial Factoi
Subject_2Factor loco tutoris
Subject_3Appointment
Subject_4Objection to Nominee of Nearest Agnate — Discretion of Court — Neutral Appointment.

Judicial Factor — Curator Bonis — Minor — Appointment — Opposition of Minor to Appointment — Power of Court to Appoint in Face of Minor's Opposition.
Facts:

Where a petition for the appointment of a factor loco tutoris to a pupil boy was presented by certain of his relatives, including the nearest agnate, in which they nominated a certain person as suitable for the office, and the pupil and certain other relatives lodged answers objecting to the person nominated and suggested one of their own number for the office, the Court (Lord Skerrington) appointed a neutral professional man to the office.

Sinclair v. Sutherland, December 19, 1829, 7 S. 214, and Jackson v. Wright, June 19, 1835, 13 S. 961, commented on.

Question as to the power of the Court to appoint a curator bonis to a minor pubes who objects.

Headnote:

John Alexander, chemist and druggist, Aberdeen, died on December 1, 1908, intestate and without having named a tutor and curator to his surviving children, viz., Helen May and John, who were respectively in minority and pupilarity. A petition was presented by Edward Hutcheon, a maternal uncle of the children, Robert Mearns, their nearest agnate, and certain other relatives, craving the appointment of John Rattray Flockhart, C.A., as curator bonis and factor loco tutoris to the children. Answers were lodged thereto by the two children and certain other relatives, in which (1) Helen May Alexander objected to the appointment of a curator bonis on the ground that she was a minor pubes and therefore entitled to choose curators for herself, and (2) the other respondents objected to the petitioners' nominee and suggested that either Henry Hutcheon or George Duff Boddie, who were respectively brother and brother-in-law of the deceased mother of the children, should be appointed factor loco tutoris to the pupil child.

It was argued for the petitioners that the Court, in the absence of any good reason shown to the contrary, ought to appoint to the office the nominee of the nearest agnate— Sinclair v. Sutherland, December 19, 1829, 7 S. 214; Jackson v. Wright, June 19, 1835, 13 S. 961; Simpson, November 17, 1860, 23 D. 35.

In answer the respondents quoted Armit, May 25, 1844, 16 Scot. Jur. 471, and argued further that it was not competent for the Court to appoint a curator bonis to a minor pubes against his will— Hutchison,
Page: 715↓
July 12, 1881, 18 S.L.R. 725; Macdonald, April 30, 1895, 4 S.L.T. 4.

Judgment:

Lord Skerrington—“I refrain from expressing any opinion on the general question as to the power of the Court to appoint a curator bonis to a minor pubes in the face of opposition on the part of the minor. In certain circumstances it might be proper to appoint a curator ad litem to confer with the minor, and upon his report I should be disposed, if I thought the case an urgent one, to report the matter to the Inner House. On the other hand, it seems to me that there would require to be exceptional circumstances to justify such a step and in the present case I do not think there are any such circumstances.

With regard to the person who should be appointed as factor loco tutoris to the pupil boy, I cannot say that I attach much importance to the case of Sinclair, 7 S. 214, or to the case of Jackson, 13 S. 961, quoted by the petitioner's counsel as laying down any rule to the effect that the Court ought to appoint the person nominated by the nearest agnate. The case of Jackson suffers somewhat severely from the criticism of the Lord Justice-Clerk in the case of Armit, 1844, 16 S.J. 471. As regards Sinclair's case, the Court did no more than express a preference for the course recommended by the relations of the father rather than for that recommended by the relations of the mother.

In the whole circumstances I am of opinion that the right course in the present case is for me to appoint a neutral professional man of my own selection as factor loco tutoris.

I shall give Mr Wilson an opportunity of communicating with those instructing him so as to enable them, if so advised, to lodge in process a letter from the minor pubes consenting to the appointment of the same gentleman as curator bonis.”

The Lord Ordinary appointed Walter A. Reid, F.F.A., Aberdeen, to be factor loco tutoris to John Alexander, with the usual powers, and quoad ultra refused the petition.

Counsel:

Counsel for the Petitioners— A. M. Maekay. Agent— D. Hill Murray, S.S.C.

Counsel for the Respondents— D. M. Wilson. Agents— Kinmont & Maxwell, W.S.
1909