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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brodie v. London And North-western Railway Co. [1912] ScotLR 162 (27 November 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0162.html
Cite as: [1912] ScotLR 162, [1912] SLR 162
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SCOTTISH_SLR_Court_of_Session
Page: 162↓
Court of Session Outer House First Division.
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v.
Facts:
A curator bonis to a lunatic purchased debenture stock of an English railway company as an investment for funds under his charge, and accepted transfers thereof in the name of his ward— per himself. The company, however, intimated that it was contrary to their practice to recognise trusts or limited titles on their register, and declined to enter the stock in the ward's name.
In an application by the curator bonis for special power to register the stock in his own name, the Court, in view of the fact that the transfer had already been taken in the name of the ward, granted the authority craved, but held, that in investing in the stock of such English companies it had already been recognised that the appropriate course for a curator bonis was to register in his own name, and to endorse on the share certificate a statement to the effect that he held the stock for behoof of his ward.
Clark v. Accountant of Court, November 12, 1886, 14 R. 55, 24 S.L.R. 38, approved.
William Brodie, writer, Glasgow, curator bonis to John Proudfoot Dick, presented a note for special powers in which he craved authority as curator bonis “(1) to accept and sign the transfer or transfers for and to register in his own name £3800 of the 3 per cent. debenture stock in the London and North-Western Railway Company in the stock register of the said company, and (2) to accept and sign the transfer or transfers for and to register in his own name ( a) any stocks of English railway companies and ( b) any stocks transferable in the books of any bank authorised as investments under and by virtue of the Trusts (Scotland) Amendment Act 1884 and the Colonial Stock Act 1900, or any other Act amending or extending the same, and which may hereafter be purchased by the said curator bonis as investments for curatorial funds under his charge.”
In his report to the Accountant of Court the curator bonis stated the facts of the case as follows:—“The curator bonis having available for investment some of the curatory funds under his charge, in November 1911 instructed a firm of stock brokers in Glasgow to purchase £3800 3 per cent. debenture stock of the London and North-Western Railway Company. The transfers
Page: 163↓
for said stock were taken in name of the ward and were signed by the curator bonis as follows—‘John Proudfoot Dick per his curator bonis William Brodie.’ On completion the said transfers were sent. along with the extract decree of the appointment of the curator, to the secretary of the London and North-Western Railway Company to be registered in the company's books. The railway company, however, refused to acknowledge the extract decree of appointment and to register the said transfers in name of the ward, and accordingly returned the transfers.” Answers were lodged for the London and North-Western Railway Company, in which they, inter alia, stated—“The respondents have no alternative but to place the names of all persons who purchase their stocks on their stock registers without qualification or notice of any trust. They are not entitled to register as an absolute owner any person whose title as presented to these respondents shows that he is not an absolute owner in his own right, and if the limited nature of his title appear in a stock certificate it would be inconsistent with the statutory provisions applicable to the respondents' undertaking.”
The following authorities were referred to— Accountant of Court v. Bennet Clark, November 12, 1886, 14 R. 55, 24 S.L.R. 38; Morrison, Petitioner, November 10, 1901, 4 F. 144, 30 S.L.R. 114.
For a considerable time there have been certain difficulties with English companies owing to the fact that such companies do not recognise on their registers trusts or qualified titles and require registration to he in the names of individuals. That, as is seen in the case of Morison, reported in 4 F. 144, has created difficulty in connection with the transfer of a ward's estate upon a sale affected by the curator; but the present application is, as the Accountant of Court points out, the first application that has been made by a curator bonis for authority to invest in his own name. I see no objection to the first branch of the prayer of the application being granted to the curator bonis in this case. So far, however, as the second branch is concerned, I think it is quite unnecessary for me to deal with it. In fact I do not think there would have been any difficulty here at all if the curator bonis had followed in connection with this investment what the Accountant of Court points out has been the practice in the past in connection with investment by curators bonis of their wards' funds in companies which refuse to recognise limited titles. That custom is that the curator endorses upon a share certificate a statement to the effect that he holds the stock for behoof of his ward. Now the present curator bonis appears to have thought that by following this course he was in some way incurring personal responsibility. I have not heard from his Counsel what exactly the nature of his fear was, and so far as I myself can see or appreciate the point I think his fear was quite unfounded. That there is a recognised practice in a matter of this sort appears to me to make it quite unnecessary for the Court to pronounce a general finding, and the only reason why in this case I pronounce a particular finding is that in this case the transfers have been taken in name of the ward, and the curator bonis appears to have got an opinion that he was following a right course. If he comes with another application like the present I should have no difficulty in refusing it and in refusing the expenses as a proper charge upon the curatory funds.
The case I was referred to of the Accountant of Court v. Thomas Bennet Clark, 14 R. 55. appears ample authority for the proposition that without such an application as the present a curator bonis is entitled to invest in suitable English investments and to take the investments in his own name.
The Lord Ordinary granted the first and refused the second crave of the prayer of the note.
Counsel for the Petitioner— R.S.Brown. Agents— W. & J. Mackenzie, W.S.
Counsel for the Respondents— Morison, K.C.—Strain. Agents— Drummond & Reid, W.S.