Scottish Court of Session Decisions

Lord President—The action was by the widow and pupil children of a man who lost his life in a motor accident, against the employer of the motor driver. The jury awarded the widow £300 and the pupil children £200 each, and were so far impressed by the unsuitability of the widow (owing to circumstances personal to herself, which were disclosed in evidence) to administer the money awarded to the children, that they recommended the money to be administered by other hands than hers. As the Judge who presided at the trial, I thought the widow's unfitness clearly established, and the jury's recommendation well justified. On the motion to apply the verdict, the consent of the widow to the appointment by the Court of a factor to administer the children's money was vouched by minute, and the Court was asked to make such an appointment.

In circumstances more or less similar to those of the present case, a factor loco tutoris was appointed de plano in Collins, (1882) 9 R. 500, and in M'Avoy, (1882) 16 S. L. R. 441 (both in the Second Division). But this course seems never to have been taken since the decision (in the First Division) of Anderson, (1884) 11 R. 870. In one later reported case, however—that namely of Sharp, (1885) 12 R. 574—the Second Division made a de plano appointment of a “trustee' for the pupils' money. I have consulted the Accountant of Court and it appears that there have been no appointments of factors such as we are now asked to make since 1882. But I understand that occasionally trusts have been set up in the Outer House in circumstances more or less similar to the present on application of the verdict. The trustees appointed in this way are under no supervision, find no caution, and are not officers of Court. As it appears to be desirable to regulate the practice in this matter for the future, we have consulted with our brethren of the Second Division.

Supersession of the natural guardian, (either generally or quoad a particular fund belonging to the ward) by the appointment of a trustee is not competent even with the consent of the legal guardian. The right which the law accords to the father or mother to the guardianship of their children is exclusive of any right on their part to transfer their powers as guardian, either in whole or in part, to others; and the appointment of a trustee by the Court, unless competent in itself, is in no way fortified by the legal guardian's consent. The Court can remove any guardian, including a legal guardian, on certain grounds, but this power does not make it competent for the Court to supersede (in relation to the whole or any part of the ward's property) the person entitled by law to the guardianship, by the appointment of a trustee. The alternative and competent course is the appointment of a judicial factor loco tutoris. Where the adoption of this course is called for by circumstances affecting the capacity or suitability of the legal guadian, the ordinary procedure is by petition in this Court or in the Sheriff Court; and the propriety of adherence to that procedure in the general case is strongly emphasised by the judgment delivered in Anderson, ( supra). The question, therefore, is whether in such cases as the present a departure from the ordinary procedure—open as that procedure always is to the parties for their adoption—is expedient and permissible. I think it is on certain conditions. A de plano appointment on application of the verdict has the great advantage of economy, and in this case it is supported by the established unfitness of the legal guardian, and her duly vouched consent to the appointment—two conditions which must anyhow concur before an application for a de plano appointment could be entertained. A recommendation by the jury is not essential, provided the unfitness of the legal guardian is disclosed at the trial so as to satisfy the presiding Judge that it exists. If, however, these two conditions concur, as they do here, there is no doubt that the powers of the Court of Session warrant a de plano appointment. The factor when appointed will have to find caution in the usual way, and his administration will be under the supervision of the Accountant of Court in the same way as if he had been appointed on petition either in this Court or in the Sheriff Court. When the ordinary procedure is followed, the general practice is to make intimation to the next of kin on both sides of the house. It will be for the discretion of the Court in each case in which a de plano appointment is moved for to decide whether such intimation should or should not be ordered. There appears to be no reason for ordering it in the present case.

Lord Cullen—I concur.

The Lord President stated that Lord Skerrington concurred.

Lord Mackenzie was not present.