Scottish Court of Session Decisions

This was a petition presented by Evan Whyte Melville Balfour Melville, son of and residing with James Heriot Balfour Melville, W.S., Edinburgh, with consent and concurrence of the said J. H. Balfour Melville, and by the said J. H. Balfour Melville, praying for the recal of the appointment of Mr John Dalziel, C.A., who in May 1899 and May 1900 was appointed factor loco tutoris to the said Evan Balfour Melville, quoad his interest in an entailed estate known as Strathkinness, which his father, the heir of entail in possession, was proposing to disentail, and also quoad a small property called the Den, which belonged to the ward in fee-simple. As there had been separate appointments in reference to each estate, separate petitions for recal were presented.

Answers were lodged for Mr Dalziel, submitting that in the circumstances the prayer of the petition should not be granted.

A remit was made to Mr Charles Young, W.S., who made a report to the Lord Ordinary.

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The circumstances under which the petition was presented are fully stated in the opinion of the Lord Ordinary, infra.

On 22nd November 1902 the Lord Ordinary ( Pearson) pronounced an interlocutor whereby he refused the prayer of the petition.

Opinion.—“The appointment which the ward, with the concurrence of his father, now seeks to have recalled was made on 19th October 1899 under somewhat unusual circumstances. The father was proposing to disentail his entailed estate of Strathkinness, and the ward, his only child, being in pupillarity, it was necessary to appoint a guardian to protect his interest under the entail. But further, the pecuniary affairs of the father were embarrassed, and accordingly in May 1899 he petitioned for the appointment of a factor loco tutoris to his son, so far as regards the son's interest in the estate and any sum that might be payable in respect of that interest. In the petition it was proposed to appoint a cousin to that office, but owing to a strongly worded minute by the ward's uncle, who was also next in succession under the entail, Mr John Dalziel, C.A., was appointed factor. The ward's interest in the entailed estate was valued at £17,600, and this sum was duly paid over to the factor, who still holds it.

“A year later, in May 1900, it became necessary to extend the factory so as to include a small property called The Den, belonging to the ward in fee simple. There was a provisional arrangement for the sale of Strathkinness, in order to clear the father from his embarrassments, and as The Den lay in to Strathkinness, and could only be advantageously sold in conjunction with it, the factory was enlarged so as to include The Den, and the price of it when sold, which proved to be £325. ^*

The ward attained minority on 15th November 1901, and the factor loco tutoris thereupon ipso facto became curator bonis to the minor by virtue of section 11 of the Judicial Factors Act 1889.

On 21st February 1902 the ward, with the consent and concurrence of his father, presented the two petitions now before me for the recal of the factory or curatory. The ground of recal is that circumstances have altered since the appointment was made. In the first place, the conflicting interests which emerged in the disentail proceedings are now ended. Further, it is said that when the father originally petitioned for the appointment of a guardian he was moved to do so chiefly owing to the embarrassment of his own affairs, that the sale of Strathkinness has relieved his embarrassment, and that he is now discharged of the pecuniary obligations for which he was then liable. The curator bonis has lodged answers to the petitions, stating that he has no knowledge or means of ascertaining the present financial position of the father, or whether it is better or otherwise than when he was first appointed.

He has now, however, lodged a minute, in which he says that he has been reasonably satisfied of the accuracy of the statement in the petition to the effect that with his share of the proceeds of the heritable estates the father ‘has discharged himself of the pecuniary obligations for which he was liable under the arrangements for terminating his sequestration, and that he is now free from any liabilities, so far as regards debts due prior to his sequestration, or obligations with reference to the arrangement for terminating that sequestration.’

Now, upon the authorities, I think it is clear enough that in these circumstances the Court would not intervene to supersede the father in his office of administrator-in-law, and to appoint a guardian (see Wardrop, 1869, 7 Macph. 532, and cases there cited). That is not quite the question which arises here, for it is now a question of recal. It appears to me, however, that substantially the same considerations must apply, with this in addition, that the ward has meanwhile attained the status of a minor pubes, and is the principal petitioner, and that the father, who was only superseded as regards the two items already mentioned, is at the present moment his administrator-in-law to all other effects. On this ground, if there were no specialty in the case, I should recal the appointment.

There is, however, this great peculiarity, that in each of the petitions for recal the petitioners state that ‘on the prayer of this petition being granted, your petitioners will forthwith execute and deliver the deed of trust in favour of Mr Thomas Bennet Clark, C.A., Edinburgh, a draft of which is herewith produced, and to which reference is respectfully made.’ It is therefore to be a recal upon a condition; and when the proposed trust-deed is examined it is found to provide for the continued supersession of the father as administrator of the capital during the whole period of the son's minority. If the trust-deed should prove to be irrevocable, which it bears to be, the plea now urged, that the father should be restored to his administration, does not fit the facts, while if the deed is revocable and is revoked, the condition of the recal would fail. I do not like a conditional recal, and I can see grave objections to it. Still less do I like the trust-deed itself as submitted by the petitioners. I do not see my way to interpone authority to it either in its original form as lodged or in its improved form as revised by the reporter, with whose remarks I agree. It is urged that it is better than nothing, but I am not quite sure of that. If the curatory were recalled simpliciter the father would be vested with the ordinary powers as administrator, but he would also resume his duties as such, and I have nothing before me to suggest that these duties would not be honestly performed, unless it be the trust-deed itself, which seems to proceed on the assumption that they might not. In other words, if the trust-deed is necessary, as seems to be assumed, it furnishes a strong reason for leaving things as they are. This is the

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* The Den was sold by the factor under authority from the Court to that effect.

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conclusion to which the reporter has come, and I confess I have a strong impression that this would be for the best interests of the ward. The difficulty lies in the authorities to which I have referred, acknowledging as they do the pre-eminent right of a father, notwithstanding his poverty, to retain or resume his position as administrator. But I dismiss the petitions on this special ground, that the resumption of the administration by the father is not one of the alternatives laid before me, and is not contemplated.”

The petitioner reclaimed, and argued—A father was entitled to act as administrator-in-law to his minor son, and might resume that office whenever he pleased— Wardrop v. Gossling, February 6, 1864, 7 Macph. 532. The fact that the petitioners, desiring to act with entire candour, had stated the proposal to have a trust deed granted, did not make the petition a request for a conditional recal. The object of the application was to obtain a larger income than could be obtained from the securities which a judicial factor would invest in.

Counsel for the respondent supported the Lord Ordinary's opinion.