United Kingdom House of Lords Decisions

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SCOTTISH_HoL

Page: 987↓

(1861) 1 Paterson 987

REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.

No. 148

John Dumbreck and Others, Appellants

v.

The Rev. W. Stevenson and Others (Stevenson's Trustees), Respondents

FEBRUARY 11, 1861.

Subject_Trust — Minor — Pupil — Parent and Child — Right of Administration — Payment of Child's Legacy — Process —

6 Geo. IV. c. 120, § 10—Act of Sederunt 11th July 1828, § 47. The trustees under a trust disposition paid the shares of two sons to their father, as their administrator, at the same time taking caution from him, and they also received a full discharge, by the eldest son, and the father, as his curator, and by the father, as tutor to the younger son. The sons, on arriving at majority, objected, in a multiplepoinding, to the trustees crediting themselves with these payments, averring that the father had appropriated the money to his own uses, and the cautioner had become bankrupt; and on these statements they close their record.

Held (affirming judgment), That the payment of the sons' shares by the trustees to the father, who, though poor, was not bankrupt, was, in the circumstances, in bonâ fide, and a valid and competent act, in respect the trust deed did not exclude the father's tutorial and curatorial right of administration over the estate of the minors.

Leave to make additional statements to the record, in an action of multiplepoinding, long after it had been closed, refused as incompetent, in respect the proposed statements contained new grounds of action. ¹

The objectors appealed to the House of Lords, maintaining in their case, that the judgment of the Court of Session should be reversed. 1. Because, by the terms of the trust settlement, the power of administration of the appellant's father was excluded, and the respondents were not justified in making payment to him of the provision bequeathed to the appellant.—Williams on Executors, vol. ii. pp. 1267–8; Roper on Legacies, vol. i. p. 879. 2. Because the respondents, being aware of the embarrassed circumstances of the appellant's father, were not justified in paying over to him the appellant's share of the trust funds, but should have applied to the Court of Session to interpone its authority to the course to be followed by them, and, not having done so, they were liable in payment to the appellant. 3. Because the respondents having extra-judicially accepted of caution, and not sought judicial caution, they must take on themselves the responsibility of making that caution effectual.— Holloway v. Collins, 1 Ch. Cas. 245. 4. Because, in point of fact, payment of the legacy was made to Michael Waddell, one of the cautioners, and in whose hands the funds were placed entirely beyond the control of the legal administrator. 5. Because, in any view, the appellant was entitled to have added to the record the statements contained in the minute, No. 340 of process, before quoted.

_________________ Footnote _________________

¹ See previous reports 19 D. 462: 29 Sc. Jur. 213. S.C. 4 Macq. Ap. 1: 33 Sc. Jur. 269.

Stevenson's trustees supported the judgment on the following grounds: I. Because the interlocutor of the Court of Session of 13th January 1857, refusing to allow additional statements and new grounds of action to be added to the record, was well founded and in accordance with the statutes—Act 6 Geo. IV. c. 120; Mackintosh v. Cheyne, 8 S. 356; Kay v. Miln, 8 S. 437; Wilson v. Jamieson, 5 S. 518; Boswell v. Ogilvy, 11 D. 185. 2. Because the share of the trust funds belonging to the appellant was a vested interest, and, at the time it was paid to his father, was then exigible from the trustees. 3. Because the appellant's father, John Dumbreck, senior, as his administrator in law, was entitled to receive payment of the trust monies in question, and his discharge to the trustees for the amount was valid and effectual—Stair, 1, 5, 12; More's Notes on Stair, p. 31; Bank. 1, 6, 2, 4; Ersk. 1, 6, 54; 1 Darling's Practice, p. 88; Parker's Styles of Summonses in the Court of Session, Art. 3, p. 6. 4. Because there are no special circumstances in the present case alleged or proved to invalidate the discharge, or to render the respondents liable in the appellant's claim— Johnston v. Wilson, 1 S. 558.

Mundell and Mair for the appellant.—The natural right of the father to be administrator in law of his children was restrained in this case by the terms of the trust deed; and accordingly the duty of the trustees to see to the application of the money was all the stronger. Even at common law the right of the father to receive legacies for the child is qualified by an exception, where he is insolvent or embarrassed. It is well settled in England, that an executor is not justified in paying an infant's legacy to the father.

[ Lord Chancellor.—You had better keep to the law of Scotland, as this is a case peculiarly of Scotch law.]

The above exception is well settled in Scotland— Govan v. Richardson, M. 16,263; Wilkie v. Dalziell, M. 16,311; Graham v. Duff, M. 16,383. The trustees, therefore, who well knew of this embarrassed state of the father, ought not to have paid without a decree of the Court of Session. They ought not to have been contented with ordinary caution, and must take the risk of that caution being insufficient. It was also an improper exercise of discretion in the Court of Session to prevent the appellant adding matter to the record, which would shew the knowledge of the trustees, that the father was embarrassed. In the circumstances of this case, considering, that the record had been closed before certain important documents had been recovered which shewed these matters, it was reasonable, that an application to add to the record should be granted.

Rolt Q.C., and Anderson Q.C., for the respondents, contended, that the application to add to the record after it was closed was contrary to the well-established practice—6 Geo. IV. c. 120, § 10; Act of Sederunt, nth July 1828, § 47. A series of cases under this statute has settled the point. As to the merits, it is well settled in Scotland, that the father, as administrator in law, was entitled to receive payment of the legacy, unless there are very special circumstances against him—Stair, 1, 5, 12; More's Notes, xxxi.; Bank. 1, 6, 2; 1, 6, 4; Ersk. 1, 6, 54; M. 16,221, 16,353, 16,250. Here the trustees took caution which was good at the time, and they did all that was requisite in the circumstances.

Lord Chancellor Campbell.—My Lords, having heard this case fully and ably argued, and entertaining no doubt upon it, I think I should not be justified, if I were to propose to your Lordships any postponement of our decision upon it. The litigation has already lasted longer than the siege of Troy; it is now in its twelfth year, and I should be sorry to prolong it for twenty four hours more.

The first question is, whether the addition ought to have been allowed to the record. That is a matter of procedure upon which this House would be reluctant to interfere with the Court of Session; but I must say, that I entirely agree in their decision. It appears to me, that the Act of Sederunt placed actions of multiplepoinding upon the same footing as other actions. And under the circumstances in which this case stood, after it had been, I think, eight years under litigation, and in the stage at which it had arrived after the reclaiming note to the Inner House, in my opinion, if there had been ample discretion, it would have been an ill exercise of discretion if the amendments had been allowed, for it would only have led to confusion and embarrassment, and would have been of no advantage to any party concerned.

Then we have to consider whether, upon the record as it stands, the interlocutors appealed from ought to be affirmed. Now I am clearly of opinion, that they ought. It is allowed, that by the general law of Scotland the father is the administrator for the pupil; and when we look at this settlement we see, that there clearly was nothing in the settlement, that was at all to abridge the power of the father as the administrator for the son. Then, that being so, we have to consider, whether the mere poverty of the father would be a sufficient ground for refusing the payment to him of what was due to the son. I am clearly of opinion, that poverty of itself would not be a sufficient ground. Men, whether in Scotland or in England, may be poor, but although they are poor they are honest; and it is unreasonable to say, that a cottager, whose son has had a small legacy left to him, is not to be entitled, because he is poor, to receive the money which may enable him to send the poor boy to school, and give him a chance of making his way in the world, but that he must waste his money in applying to the Court of Session for security that it shall be duly administered. If there has been on his part mala fides, or, as it may be called,

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insolvency in one sense of the word, I should think the trustees would be guilty of a breach of trust if they were to pay over the money to the father. I think that, looking at the admission of which I give the appellant the advantage—that there was something more than pure poverty; that there was embarrassment of circumstances, that might have rendered something more necessary to be done than barely paying over the money to the father, and allowing him to dispose of it as he pleased—I think, upon the authority of Govan v. Richardson, and the other cases which have been referred to, that there would have been strong ground for contending, that it would have been unjustifiable, in this case, for the trustees, under the circumstances which the trustees acknowledge to have existed, to have simply paid the money over to the father. But instead of that they do what, if there had been an application to the Court, the Court would have directed. They obtained caution from cautioners who were substantial at that time, and their solvency was inquired into and established to be perfectly sufficient for this purpose. And it was under these circumstances that the payment was made. Now, whether it was made directly to the father, or to Waddell, the cautioner, and the father got the money afterwards, seems to me immaterial. Whether it was given to Waddell, or whether it was given to the father, I think that, after the caution had actually been given, the trustees had a right to make the payment as they did.

I think it would be a waste of your Lordships' time if I were to enter more into detail upon the facts of the case and the law which belongs to them, and I shall therefore only move your Lordships, that the interlocutor be affirmed, and the appeal dismissed; but, as the appellant is suing in formâ pauperis, of course there will be no costs.

Interlocutors affirmed.

Solicitors: For Appellant, Dodds and Greig, Solicitors, Westminster; David Manson, S.S.C., Edinburgh.— For Respondents, Deans and Rogers, Solicitors, Westminster; Wotherspoon and Mack, W.S., Edinburgh.

1861