Scottish Court of Session Decisions

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Cite as: [1924] ScotLR 529, [1924] SLR 529

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SCOTTISH_SLR_Court_of_Session

Page: 529↓

Court of Session Inner House First Division.

Saturday, June 14. 1924.

61 SLR 529

Dick

v.

Douglas.

Subject_1Judicial Factor
Subject_2Tutor-Dative
Subject_3Incapax
Subject_4Custody of Person — Appointment of Nearest Male Agnate — Prior Appointment of Curator Bonis.
Facts:

In a petition by the eldest son and two other children of a widow incapax, who had been removed without their consent by another of the children to her (the latter's) own house, and into her exclusive charge, and on whose estate a curator bonis had been appointed, for the appointment of the eldest son as tutor-dative, the Court granted the petition under reservation, of consent, of the prior appointment of the curator bonis.

Headnote:

Robert Dick, Glasgow, the eldest son, and Thomas Dick, Glasgow, and Mrs Janet Somerville Dick or Brown, children of Mrs Janet Somerville Young or Dick, petitioners, presented a petition for the appointment of a tutor-dative to Mrs Dick, in which Mrs Mary Wylie Dick or Douglas, the only other child of Mrs Dick, and Charles J. Munro, C.A., Edinburgh, curator bonis to Mrs Dick, were respondents. The petition prayed the Court “to appoint the said Robert Dick or such other person as to your Lordships shall seem proper to be tutor-dative of the said Mrs Janet somerville Young or Dick, or, alternatively, to appoint the said Robert Dick or other suitable person to have the care and custody of the said Mrs Dick until further order of Court; and to ordain the said Mrs Mary Wylie Dick or Douglas forth with to surrender the person of the said Mrs Dick into the custody of the person so appointed.”

Mrs Dick, who was seventy years of age and a widow, had for some time prior to 1917 carried on business in Glasgow. In 1919 she purchased a house in Crieff and went to live there with her husband, who died in 1921. After that she lived for five months with the petitioner Mrs Brown, and then returned to Crieff and lived at her house there along with a cousin, Mrs Fraser, who acted as housekeeper. In December 1922 the respondent Mrs Douglas, without consulting any member of the family, Removed Mrs Dick to a house in Glasgow where she (Mrs Douglas) resided with her husband, and thereafter presented a petition for and obtained the appointment of Mr Munro as curator bonis on Mrs Dick's estate, which was valued at £12,000. from the medical certificates it appeared that Mrs Dick was suffering from senile decay, and unfit to look after herself and her affairs.

The grounds of the petition were, inter alia, that the arrangement by which the curator bonis had the control of Mrs Dick's estate and Mrs Douglas the control of her person was bad, and not conducive to Mrs Dick's health and comfort, nor to efficient and beneficial administration; and that as Mrs Dick's estate was sufficient to enable her to live in comfort in her house in Crieff, which was more suitable as a residence for her from the point of view of her health and welfare, and as affording reasonable access to the members of her family, than was Mrs Douglas's house, the petitioners were desirous that she should reside there. With regard to the appointment desired, they averred—“9. The petitioner Robert Dick, being legally entitled to the office of tutor-at-law to his said mother, has been advised that by adopting the prescribed procedure he could have the appointment of the curator bonis superseded. He is, however, anxious to avoid the unpleasantness and expense involved, and in any event is reluctant to interfere with the present arrangement for administration,
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to which in itself none of the petitioners take exception. They submit, however, that efficient and beneficial administration is impossible until other provision than the present is made for the custody and care of Mrs Dick. The said Robert Dick has offered to provide for her in his own home in Glasgow, and is willing to do this or to make arrangements for her to reside under Mrs Fraser's care at her own house in Crieff. The latter arrangement seems to the petitioners to be better both as regards the health of Mrs Dick and the interests of the members of her family, all of whom desire facilities for access to her. The petitioners submit that it is necessary and in the interest of their said mother that the Court should now appoint some suitable person as tutor-dative, or alternatively, should appoint such suitable person to have the care and custody of Mrs Dick. The said Robert Dick is willing, if the Court thinks fit to appoint him, to undertake the responsibilities of legal guardian, either as tutor-dative to her or under other order of Court. Failing the appointment of the said Robert Dick, which would be approved of by all the petitioners, the petitioners respectfully submit that the said Mrs Elizabeth Paton or Fraser would be a suitable guardian. She is willing to undertake the duties and to attend on Mrs Dick at her house in Crieff, so long as that arrangement may appear suitable.”

The petitioners produced a medical certificate to the effect that it would be to the advantage of Mrs Dick's health to live in Crieff instead of in the house occupied by Mrs Douglas in Glasgow. Mrs Douglas and the curator bonis both lodged answers and produced medical certificates to the effect that Mrs Dick should remain in charge of Mrs Douglas. The curator bonis stated that he had satisfied himself by a personal visit that Mrs Dick was being properly looked after, and that in view of the medical opinion obtained by him, he did not consider that he was warranted in suggesting the removal of Mrs Dick from Mrs Douglas's house.

Argued for thepetitioners—The petitioner Robert Dick should be appointed tutor-dative. It was necessary to have someone to take charge of the incapax. The Court had power to make such an appointment—Exchequer Court (Scotland) Act 1856 (19 and 20 Vict. cap. 56), secs. 1, 2, and 19; Clerk & Scrope, Court of Exchequer Forms, p. 227—and always did so where there was an incapax and a request made for such an appointment— Urquhart, 1860, 22 D. 932; Simpson, 1861, 23 D. 1292; Fraser on Parent and Child (3rd ed.), pp. 668, 670, 671. As eldest son Robert Dick was the most natural and suitable person for the appointment, and there was no reason why he should not be appointed. As nearest male agnate he could have been appointed tutor-at-law and displaced the curator bonis, and would have had full control, except so far as excluded as heir-at-law from the custody of the person of the incapax—Ersk. Inst. I, 7, 45. That he was the heir-at-law was merely a technical objection in the present case, and was no ground for opposing his appointment as tutor-dative. The fact that he was nearest agnate was no bar— Urquhart ( cit.); Simpson ( cit.); Bryce, 6 S. 425, per Lord Balgray at p. 436; Stuart v. Moore, 1860, 22 D. 1504, per the Lord Justice-Clerk at p. 1512—and his appointment need not displace the curator bonis in the control of the estate. Graham, 1881, 8 R. 996, was also referred to.

Argued for the respondent Mrs Douglas—There was no authority for appointing a tutor-dative where there was already a curator bonis. The cases referred to by the petitioners were all cases where it was necessary to place someone in charge of the estate. The chief consideration was the benefit of the ward, and the matter was wholly in the discretion of the Court— Gardiner, 1869, 7 Macph. 1130. Here the ward was being properly looked after, and there was no ground for altering the position. Further, the old rule was against appointing an heir-at-law to the custody of the person of an incapax—Bankton Inst, i, 7, 8.

No argument was presented for the curator bonis.

At advising—

Judgment:

Lord President (Clyde)—This is an unusual application—for the appointment of a tutor-dative to a person mentally incapax. The incapax is the mother of the three petitioners and of the respondent (Mrs Douglas). She is advanced in years and suffers from senile decay to an extent which renders her incapable of looking after herself in any way and even of controlling her ordinary bodily functions. Her case is thus an eminently appropriate one for responsible guardianship. A peculiarity of the case is that she already has a curatorduly appointed by the Court to manage her property, which consists of a villa in Crieff and moveable investments amounting to about £12,000. The petitioners, while desirous of having a tutor appointed to their mother's person, do not wish, if it can be helped, to disturb the curator's administration of her estate, and if an appointment of a tutor-dative is to be made, the respondent Mrs Douglas also wishes the curatory to be maintained. The petioners suggest one of themselves, namely, the eldest son of the incapax for appointment as tutor-dative. As the nearest male agnate he would be entitled to have himself served as tutor-at-law, 1585 C. 18.

Prior to December 1922 the incapax lived at her house in Crieff accompanied by a female cousin (a widow of 52) who looked after her. There she was visited from time to time by her daughters. But in that month the respondent Mrs Douglas—moved (as she says) by the progressively weak state of her mother's health, but (unfortunately) without giving any intimation of her plans to any other member of the family—suddenly removed her mother to her own house in Glasgow (a house of two rooms and kitchen occupied by herself, her husband, and her son), and having shut up the villa in Crieff took immediate steps to have a curator bonis appointed on her mother's

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estate. Since these events the respondent appears to have given her mother the services of a dutiful daughter, but even now no intelligible explanation is forthcoming of the haste and privacy with which she took her mother into her exclusive charge; and it is not to be wondered at that the petitioners regard the change in their mother's circumstances (involved in her removal from her own house to inferior surroundings) as detrimental and inconsistent with the amount of their mother's means available through the curator for her care and treatment. The respondent Mrs Douglas is no doubt honestly convinced that the de facto guardianship she has acquired of her mother's person is all for the best—and it may be so. But she has no right, any more than any of her brothers and sister who might have in like manner obtained possession of the mother's person, simply to override the opinions and wishes of the others in the matter. It seems to me therefore that the appointment of an official guardian to the person of the incapax is the only solution of a difficulty for which the respondent's hasty action is at least in some measure responsible. Such a guardian will be responsible to the Court for the proper discharge of his duties.

But the petition was attacked at the debate as incompetent. It was said that the proper course was for the nearest male agnate (the eldest son) to proceed by cognition and service as tutor-at-law, and no doubt that would be a perfectly competent, if painful and costly, proceeding. It is settled, however, that this is not a conclusive objection to the appointment of the nearest male agnate as tutor-dative under the jurisdiction which was transferred to the Court of Session from the Court of Exchequer— Urquhart, 1860 22 D. 932; see also Wilson, 1857 19 D. 286, and Simpson, 1861, 23 D. 1292. It is true that the nearest male agnate if served tutor-at-law would be debarred from actual custody of the ward's person on account of the old suspicion attaching to him as the ward's heir (Ersk. i. 7, 7), though he would be entitled to see that the ward was properly looked after and managed—while this disability does not attach to him as tutor-dative. But this is hardly a consideration to which force can be attached in these days. Cognition was not, at any rate latterly, a necessary preliminary to the appointment of a tutor-dative to an incapax by the King through the Court of Exchequer ( cf. Ersk. i, 7, 51; Colquhoun v. Wardrop, 1628, M. 6277, Spottiswood's Report; Stewart v. Sproul, 1663, M. 6279. The history of the Exchequer Court's jurisdiction is referred to in Fraser on Parent and Child at p. 259. It happens that there was a cognition in the recent case of Graham, 1881, 8 R. 996, but the practice applicable to procedure by summary petition in this Court is satisfied by such medical certificates as we have here, and no point was made on this head at the debate.

A more delicate question is raised by the existence of the curatory. The service of a tutor-at-law would supersede it ( Young v. Rose, 1839, 1 D. 1242) just as it would supersede an appointment of tutor-dative, Ersk. i, 7. 51. The right of the tutor-at-law naturally has precedence over appointments which are essentially temporary in their character, for these appointments are made precisely because in the meantime the legal guardian does not come forward to claim and exercise his legal rights. But no reason occurs to me for holding it incompetent to appoint a tutor-dative to the ward's person while allowing the management of his estate by a curator bonis to continue. There is no necessary or legal inconsistency between two such appointments, and though the circumstances which would make the co-existence of them convenient or expedient must be rare and are little likely to arise except upon the consent of parties, I see nothing which is necessarily incompetent in appointing a tutor-dative under reservation of the prior appointment of a curator bonis. In the present case all the parties consent, if an appointment is made, to such a reservation. In any arrangements which the tutor-dative may find it his duty to make for the proper care of the ward's person he will have available to him the free income of the estate under the curator's charge, and it will be for him to determine how that free income can best be expended for the care of the ward's person. If difficulties should arise it may be necessary to bring them before the Court, but I do not see that any need arise.

I think therefore that we should appoint the eldest son tutor-dative to his mother subject to a reservation, which will proceed on consent, of the appointment of the curator bonis. We are not asked to do more than this; in particular we were not asked to make any order for the immediate surrender of the ward's person to the tutor-dative, and no such order will be pronounced in this petition. It will be for him as the official guardian responsible to this Court to consider carefully, on proper expert advice given on a full disclosure of the ward's circumstances and of her available means, what is the best plan for her care and treatment. The respondent Mrs Douglas has produced a medical certificate, in very strong terms, favourable to the maintenance of the incapax under her care, not with standing the somewhat limited accommodation and facilities available in her domestic establishment. On the other hand, the representatives of the Board of Control, while expressing their appreciation of Mrs Douglas's filial services, have indicated that the somewhat limited accommodation available in Mrs Douglas's domestic establishment are not all that could be desired; and it may well be that, having regard to the ward's means and estate, a better arrangement than at present prevails could be devised and executed in her interests.

Lord Skerrington, Lord Cullen, and Lord Sands concurred.

The Court appointed the petitioner Robert Dick to be tutor-dative, subject, of consent, to the reservation of the prior appointment of the curator bonis.

Counsel:

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Counsel for the Petitioners— Robertson, K.C.— J. Stevenson. Agents— Dove, Lockhart, & Smart, S.S.C.

Counsel for the Respondent Mrs Douglas— Gentles, K.C.— Gilchrist. Agents— Gray, Muirhead, & Carmichael, S.S.C.

Counsel for the Respondent C. J. Munro— Maconochie. Agents— Hamilton, Kinnear, & Beatson, W.S.
1924