Scottish Court of Session Decisions

Mr John Brown, innkeeper, Cross Keys Inn, Perth, died intestate on 5th September 1894, predeceased by his wife and survived by eight children, of whom William, born 7th June 1882, was the eldest son. At the date of his death John Brown was possessed of moveable estate of something less than £200 in value, and of the Cross Keys Inn. William as his father's heir in heritage succeeded to the inn.

On 6th November 1894 Mr William James Wood, accountant, Perth, was appointed factor loco tutoris to William Brown, and for some time after his appointment he carried on the business of innkeeper there by the aid of a servant. He subsequently applied to the Sheriff for authority to sell the inn on the ground of the hazardous nature of the business, the possibility of the forfeiture of the licence, and the resulting loss to the estate. The Accountant of Court having reported favourably on the application, power to sell was granted by the Sheriff, and on 25th March 1895 the inn was sold for the sum of £2140, which was invested partly in heritable securities, and partly in 3 per cent. Canadian Inscribed Stock.

William Brown attained the age of fourteen on 27th June 1896. On 30th July in that year he executed a holograph settlement in the following terms:—“I hereby assign my whole property, in the event of my death, to Andrew Muir, brewer, Perth, as my trustee and executor, in order that he may realise the same and divide it equally among my brothers and sisters who may then be alive.— William Brown, 30th July 1896.” Prior to doing so he was informed by his legal adviser that if he died intestate his property might fall to his younger brother, and he thereupon stated his desire that his estate should be divided equally among his brothers and sisters, and executed the above settlement. He had at that time no interest in any other estate than the proceeds of the sale, and was aware that the heritable property had been sold. William Brown died in October 1896 survived by five brothers and sisters.

A special case was presented by (1st) William Brown's executor, and 2nd, his heir-at-law, as to the succession to the proceeds of the sale of heritage.

The contentions of the parties as set out in the case were—“The first party maintains that said free proceeds were moveable estate in the person of the said William Brown at the date of his death, in respect ( a) that the sale of said inn was in reality a compulsory one; ( b) that the said free proceeds fall to be administered in terms of the settlement of the said William Brown, the said William Brown having approved of and ratified said sale; and ( c) that in any event, said proceeds are carried by the deceased's settlement. The second party, on the other hand, maintains that said free proceeds were heritable estate in the person of his brother William Brown at the date of his death; that no part thereof was carried by his settlement, but that said proceeds fall to him as his brother's heir-at-law in heritage.”

The questions submitted for the opinion of the Court were—“(1) Are the free proceeds derived from the sale of the said Cross Keys Inn payable to the first party in order that they may be distributed by him in terms of the settlement of the said William Brown? or (2) Do said proceeds now fall to the second party as heir-at-law in heritage of the said deceased William Brown?”

The Court on 18th March 1897 appointed Mr James Adam, advocate, tutor ad litem

Page: 734↓

to the second party, and Mr Adam put in a minute adopting the special case as adjusted on behalf of his ward.

Argued for first party—The proceeds of the sale were moveable, the pupil having ratified it on attaining minority, for he had no estate beyond that fund, and assigned his whole property to be divided. It was true that the factor loco tutoris had remained on in the capacity of curator bonis, but the minor was practically in the position of one without curators, this curator not having been selected by the minor, and having been appointed not as guardian of the pupil's person but of his estate. It was conceded that a minor without curators could sell heritage, and surely he could test upon it when he found it had been already sold. Moreover, the power of a minor to test on what was heritable only destinatione was greater than in the case of what was heritage in forma speciflca— Brand's Trustees v. Brand's Trustees, December 19, 1874, 2 R. 258, 3 R. (H.L.) 16. The sale had in point of fact been a compulsory one, and not a mere act of administration, for it was certainly made “for weighty reasons,” and accordingly it had effected a conversion—Erskine, i. 7, 18; Accountant of Court v. Gilroy, May 21, 1877, 10 Macph. 715; Bontine's Curator, July 13, 1870, 8 Macph. 977.

Argued for second party—(1) The sale of the property by the curator did not operate conversion, as it was not a compulsory sale. Nothing short of a compulsory sale could have this effect. It was not enough that the sale should be for the benefit of the estate— Macfarlane v. Greig, February 26, 1895, 22 R. 405— Kennedy v. Kennedy, Nov. 15, 1843, 6 D. 40; (2) If there was no conversion, then the estate was heritable. The minor could no doubt have sold with his curator's consent, but it did not follow that he could adopt the sale by the curator so as to test on the price. The authorities conclusively settled this question in the negative— Sharp v. Cripton, July 19, 1671, M. 16,285; Advocate-General v. Anstruther, December 23, 1850, 13 D. 450, at pp. 454, 455; Fraser on Parent and Child, 261; Erskine, i. 7, 18; M'Laren on Wills and Succession, vol. i. 238. But in point of fact there was no adoption. If making a will were to be held as adoption of a sale, then the rule that a minor cannot test upon heritage could never have any application, since the making of the will would ipso facto convert the estate into moveable estate.

At advising—