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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith and Others v. Sutherland and Another [1890] ScotLR 28_192 (13 December 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/28SLR0192.html Cite as: [1890] ScotLR 28_192, [1890] SLR 28_192 |
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Page: 192↓
Both the parents of a child being dead, and the child being left without any legal guardian, a petition was presented by the child's whole surviving relatives, with the exception of one aunt, praying the Court to find the child's grandmother entitled to his custody. It appeared that when his parents died the child was boarded with some friends, whose care of their child had given the parents the most complete satisfaction; that the trustees under the father's will had continued that arrangement; and that it was improbable that the nearest male agnate would ever be able to undertake the office of tutor.
Held that there was no reason to interfere with the existing arrangement for the education and upbringing of the child, and petition refused.
The Rev. William Smith, minister of the Church of Scotland, died in India on 21st October 1889. His wife died about six months before him. There was one child of the marriage, John M'Gregor Smith, born in 1881. Mr Smith left a testament, in which he appointed certain trustees to carry out his last wishes, and to them he left his whole estate, both real and personal, “for the benefit of my son John M'Gregor Smith, now residing with Mr James Wilson, Dunfillan House, Crieff.” He appointed the trustees his executors, and expressed a desire that they should pay his mother £100 from his estate, and directed that she and his brother Alexander should have the liferent of a little house property belonging to him in Catrine. The will contained no appointment of a tutor, and gave no directions as to the guardianship or custody of the testator's child.
When Mr Smith died his son John M'Gregor Smith was with Mr James Wilson at Crieff, and the accepting trustees under the will—-the Rev. William Summers Sutherland and the Rev. James Muir Hamilton, both ministers of the Church of Scotland—continued to keep the boy where he was.
In November 1889 the present petition was presented by Mrs Catherine Smith, the boy's paternal grandmother, and others, his uncles and aunts, being, with the exception of one aunt who did not join in the petition, the whole surviving relatives.
They stated—“The petitioners are very desirous that the custody of the said John M'Gregor Smith should be entrusted to his grandmother, the petitioner Mrs Catherine M'Master or Smith. They believe it would be for his benefit to be placed under the guardianship of his grandmother. They further believe and aver that the estate is not sufficient to bear the expense of his board and education at Crieff. The available income, it is believed, amounts to about £40. They are satisfied that if he were living with his grandmother, and educated in Glasgow, the expense of his upbringing and education could be provided out of the income of the estate, and that such an arrangement would be in every way conducive to his interests and welfare.”
The petitioners therefore prayed the Court to find the petitioner Mrs Catherine Smith entitled to the custody of the boy John M'Gregor Smith, and to ordain Mr Wilson to deliver him up to her.
The trustees, Mr Sutherland and Mr Hamilton, lodged answers, in which they stated that “John M'Gregor Smith formerly resided for about a year with the petitioner Catherine M'Master or Smith, who then lived atEaglesham. Hisfather, however, the testator, sometime before his death thought it better to remove him from her care, and to place him under the care of the said Mr James Wilson, Dunfillan House, Crieff. The testator frequently expressed to the respondents after he did so his great satisfaction with the result of this arrangement. Mr Wilson and his wife were on intimate terms with the testator, and also with Mrs Smith, the boy's mother, and he has cared for the boy's benefit in every way. The boy is receiving a good education at the Crieff Academy. The cost of his board and education is about £53 a-year, and the respondents estimate that the income of his means, together with an annual sum of £14 which he will enjoy from the Ministers Widows' Fund till he reaches eighteen years of age, will be about £60. … It is explained with reference to the petitioner Alexander Smith, who is the boy's next male agnate, and his heir-at-law, and for whom the testator made the liferent provision already mentioned, that he is unfortunately in very infirm health, and is unable to maintain himself or to be a proper guardian for the boy.” They submitted
Page: 193↓
that there were no grounds in fact or law upon which the Court should ordain the boy to be delivered up to Mrs Catherine Smith. The respondents also produced letters from the Rev. William Smith to Mr and Mrs Wilson, from which it appeared that the boy had been placed with Mrs Wilson by his mother's desire, and that the father had been more than satisfied with her “motherly care of him.”
At advising—
The object of the petitioners is to have the custody and upbringing of the boy transferred from Mr Wilson to his grandmother in Glasgow. I do not see, however, that the grandmother, or all the boy's relatives put together, have any legal title to demand that this should be done, and therefore it is entirely a question for the discretion of the Court whether the existing arrangement should be superseded and another arrangement made for the custody and education of the child.
Now, looking to the feeling and opinion of the father and mother of the child, I certainly am not of the opinion that any cause has been shown for making the change proposed. On the contrary, I think it would be rash and inexpedient in the highest degree to interfere with the existing arrangement.
I think, therefore, that the petition should be refused, as it has no ground to stand on at all, and I am further very decidedly of opinion that not one penny of the expense of these proceedings can be allowed to be made a burden on the boy's estate, and the petition must accordingly be refused with expenses.
In these circumstances I think there is no reason for interfering with the existing arrangement.
The Court refused the petition and found the petitioners liable in expenses.
Counsel for the Petitioners— J. A. Reid. Agents— Philip, Laing, & Company, S.S.C.
Counsel for the Respondents— Orr. Agents— Finlay & Wilson, S.S.C.
