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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Finlayson v Kidd [1835] CA 13_861 (4 June 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0861.html Cite as: [1835] CA 13_861 |
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Page: 861↓
Subject_Judicial Factor—Curator Bonis—Aliment.—
In an application by the curator bonis of a fatuous ward for authority to sell his heritage, which was opposed by the trustee for the creditors of the next heir; the Court, after investigation, by remit to the Sheriff, found that the free proceeds of the estate were inadequate to pay the debts of the fatuous ward, and yield him suitable maintenance and support, and that it was, therefore, expedient and necessary to sell; and warrant to sell granted to the curator, who was ordained to lodge a bank receipt for the price in the hands of the Court.
The late Alexander Finlayson, farmer in Forfarshire, had a family of thirteen children. The eldest son, Alexander, was fatuous from infancy. The father left the chief part of his estate to his second son, James, whom he burdened with a payment of £400 to each of his brothers and sisters, except one brother, William, who received a special provision, and one sister, whose provision was limited to £300. James was also bound “to clothe, maintain, entertain, and properly care for the said Alexander Finlayson, my eldest son, during all the clays of his lifetime, without having any claim or demand upon him therefor.”
The free personal estate of the father was £2483. It was said that he had also possessed valuable leases.
Alexander was maintained by his brother, James, until 1833, when James died intestate. Alexander thereupon, as his heir of conquest, succeeded to some land, extending to eight or nine acres, near Arbroath, and having a house upon it. Thomas, a younger brother, being appointed curator bonis to him, presented a petition to the Court, stating that the rental of the property was inadequate to the maintenance of Alexander: That considerable expense had been already incurred, and the cost of effecting a loan upon the subjects to pay this debt, and put the house into proper repair, would be such as to reduce the free income very much below what was required for the support of Alexander; and, therefore, he prayed the Court “to grant authority to the petitioner, with all convenient speed, to sell and dispose of the said subjects, so as the proceeds thereof may be invested in the purchase of an annuity for the maintenance and support of the said Alexander Finlayson; and for that purpose to grant dispositions and all such deeds as may be necessary for completing the title of the purchaser or purchasers; such deed or deeds containing all usual and requisite clauses, binding the said Alexander Finlayson, and being declared to all inteuts and purposes as effectual as if granted by himself in sound mind.”
William, the next brother to Alexander, was his heir presumptive, and his estates had been sequestrated under the Bankrupt Act. Appearance was made for William Kidd, the trustee, to oppose the prayer of the petition, alleging that the free rental of the property was sufficient to support Alexander—that at least a heritable loan was a more expedient proceeding than a sale—and that a summary sale of the property of a lunatie by a curator bonis, in order to buy an annuity for him, was incompetent.
The Court ordered a report from the sheriff of the county as to the “amount and value of the property of Alexander Finlayson, real and personal, and his past and present situation and circumstances, in so far as they are set forth and referred to in the pleadings.”
From the report it appeared, that, during the lifetime of James, who was an extensive farmer, Alexander was maintained in his house, having a room to himself, and partaking of the same fare with his brother—that Alexander was of a rather troublesome temper and occasionally violent—that he was averse to strangers—and that, since the death of James, he had been boarded at £40 per annum in the house of a small farmer, where he was kindly treated. His clothing formed a separate charge. A medical gentleman adduced by Kidd, deponed that he thought any expense bestowed upon Alexander, beyond that of supplying him with wholesome food and comfortable clothing and lodging, would be thrown away, and that he would be at least as well cared for, if placed in a well regulated asylum, as where he was.
In regard to the value of the property of Alexander it appeared that it was about £1000—the free income derived from it was between £30 and £33—and Kidd admitted that it would require a sum of £61 to put the house in proper repair, while the curator averred that a much larger sum would be necessary.
It also appeared that there were debts to the amount of £118, besides the farther expense of these judicial proceedings, for which the estate of Alexander was liable.
The curator, besides disputing Kidd's title to appear, pleaded, that, considering the whole circumstances, £40 was as low as could be paid to any respectable farmer for giving suitable board and lodging to Alexander—that clothes, washing, medical attendance, &c., would require £10 or £15 more—and that as there ought to be something for contingencies, a free income of £60 should be provided. To secure such an income, and to pay the debts incurred on behalf of Alexander, was therefore the primary use of this property, and, as the Court had interfered for his protection in appointing a curator bonis (the tutor-at-law being bankrupt, and his creditors having an adverse interest), it must follow from the same principle that the Court had right to give power to the curator to sell the subject. This was a case of true necessity. Although the expense of a lunatic asylum might be lower than £40,
The trustee answered, that, in the Dundee Asylum, where the most approved treatment would be given, and every attention paid to health, a sum of only £25 was charged for board. For a similar sum, it was probable that he could be comfortably lodged in some farm-house in Forfarshire. As this was considerably below the rental, and would be still more so, after the house was repaired, there was no necessity for selling, as a small loan would suffice to pay the debt hitherto incurred. And as nothing but necessity could justify a sale, no purchaser would give a full price for the subject if authority were granted to sell it. * At least, the Court should only authorize a partial sale in the mean time, as the right of the heir should not be unnecessarily impaired.
It has been also said that the board of £40 now paid to the farmer who maintains him is too high, and that he might be well enough boarded at some
_________________ Footnote _________________
1 Ersk. 7. 17. and 52 (Ivory's ed.); 3. Bankt. 47; I. St. 16.18; Bryce, July 23, 1828, 3. W. & S. 323; Busby, Feb. 1, 1823 (ante, II. 17G, or 157, new ed.); Meikle, March 7,1823 (ante, II. 274, or 242, new ed.); Mack, Dec. 5, 1829 (ante, VIII. 195); Slade, Dec. 20, 1831 (ante, X. 16ss7); Drummond, Jan. 21, 1832 (ante, X. 216).
* It was alleged that Alexander had claims on the moveable succession of some deceased relations; but the Court considered these allegations must be laid aside, as there was no fund for immediate support, and it was doubtful what might be recovered.
Since the property as it stands seems thus inadequate to the support of the imbecile, I think the Court have power to authorize a sale. And I see no objection to the application being made in a summary form. It is a question of aliment out of which the application arises, and summary procedure seems to be competent and appropriate.
Their Lordships pronounced this interlocutor;—“Repel the objections to the competency of this application; find, in the whole circumstances of the case, that the free proceeds of the estate belonging to Alexander Finlayson under the petitioner's management, are inadequate for the payment of the debts, and the suitable maintenance, support, and protection of the said Alexander Finlayson, and therefore it is expedient and necessary to sell the heritable property belonging to him; therefore, grant full warrant, power, and authority to the said Thomas Finlayson, curator bonis, to sell and dispose of the whole heritable subjects referred to in the petition, and that by public roup, after such advertisement as may be deemed necessary; and for that purpose, to grant dispositions and all such deeds as may be necessary for completing the title of the purchaser or purchasers; such deed or deeds containing all usual and requisite clauses, binding the said Alexander Finlayson and his heirs in the same manner as if granted by himself; declare that the purchaser or purchasers shall have no concern with the application of the price or prices to be obtained for the said subjects, but shall be sufficiently exonerated by payment thereof to the curator bonis; ordain the said curator bonis to lodge the said price or prices in one of the chartered banks, and to lodge the receipt therefor in the hands of the Clerk of Court; after which their Lordships will resume consideration of the cause: Find the respondent not liable in expenses; but find that the expenses incurred by the petitioner in this case form a proper debit against the curatorial estate, and decern.”
Solicitors: J. Burness, S.S.C.— T. Deuchar.—Agents.
