Scottish Court of Session Decisions

Lord President—The point raised by this reclaiming note involves a very small sum of money, but is one of some interest. The petitioner is the curator bonis of a lunatic, who was appointed by the Court and entered upon the office, and has realised and managed the ward's estate. The petitioner was appointed in July 1910. About fifteen months after his appointment he was offered a professional appointment of a permanent nature in the United States, which he was desirous of accepting, and accordingly he made an application for recal of his appointment and discharge and for the appointment of a new curator bonis. In November 1911 his appointment was recalled and a new curator bonis was appointed. His accounts were entirely in order, and accordingly the Accountant of Court reported that in his opinion “the petitioner may be judically discharged and warrant granted for delivery of his bond of caution, but that in view of the short period of acting and the reason given for recal the expenses of his discharge and the new appointment do not form a good charge against the estate.” Now the pecuniary effect of that is that the curator will lose his fee and will be about £8 out of pocket. Upon that statement prima facie this case would appear to be one of some hardship, but I have come to be of opinion that the Accountant is right and that your Lordships should not interfere with his finding. It is quite evident that when an appointment is going to be made upon a small estate, if the gentleman proposed by the Lord Ordinary said frankly that he was willing to act but that he could not hold office for more than fifteen months, the Lord Ordinary would not appoint him. A person when accepting such an appointment gives thereby an implied undertaking that he will go on with it, I will not say for an indeterminate period, for no person can give a guarantee that he will not die or get into bad health, but he does give a guarantee that he will not act capriciously in the matter; and under caprice I think you must include steps which the party appointed may be entitled to take in his own interest but which conflict with the interest of the estate. Now all these considerations when they come to be applied will often turn out to be questions of degree, and they are accentuated in the case of a small estate. The office of Accountant of Court and the discretion given to him are designed to save small estates from expenses that should not truly be incurred in the administration of such estates. In a small estate like this, if you had a new curator appointed every few months the ward would never have any income from the estate at all, and I think it is certain from the terms of the Accountant's report that he would not have come to the conclusion stated in his report if the estate had been larger and the period of the curator's service longer. That just shows that it becomes a question of degree, which may well be left to the Accountant to determine. In this case I think that the expenses of the discharge and new appointment should not be allowed, and accordingly I think we are bound, in the interest of the ward whose estate is in our keeping, to adhere to the interlocutor of the Lord Ordinary.

Lord Kinnear, Lord Johnston, and Lord Mackenzie concurred.