Scottish Court of Session Decisions

Miss Mary Souter or M'Adam, widow of Alexander M'Adam, inspector of works, Aberdeen, was in August 1896 committed to the Royal Lunatic Asylum, Aberdeen, as a person of unsound mind. On 12th September 1896 Alexander Simpson, accountant in the Aberdeen Savings Bank, was, upon the application of her husband's testamentary trustees, appointed by the Sheriff of Aberdeen, Kincardine, and Banff, her curator bonis. Mrs M'Adam remained permanently insane from the date of her commitment to the asylum till her death. She died upon the 9th day of September 1903 intestate, survived by two brothers and the children of deceased brothers and sisters.

At the date of the appointment of the curator bonis the estate of Mrs M'Adam consisted of house property situated in Aberdeen. The gross annual rental of the said property when fully let amounted at that date to £30, 19s. or thereby, and the net rental to £19 or thereby. Mrs M'Adam was at the time duly infeft in the said subjects. Under the trust-disposition and settlement of her husband, Mrs M'Adam was entitled to the free annual income of her husband's estate, which amounted to about £7 per annum. Her income being at the time insufficient to support her in the asylum, her curator bonis on or about 14th November 1896 brought the circumstances before the Accountant of Court in a report submitted to him, in which he craved authority to sell the heritable property of his ward with the view of providing sufficient funds for her maintenance. The cost of boarding Mrs M'Adam in the asylum amounted, exclusive of clothing, to £30 per annum or thereby, and her annual income from all sources, as above stated, amounted to £26 or thereby. The Accountant of Court, after consideration of said report, expressed the view that the ward's heritable property should not then be sold, but that the curator should claim, on behalf of his ward, her legal rights in her husband's estate. This the curator did, and on behalf of his ward received from the testamentary trustees of her deceased husband £109, 16s. 1d. in full of her rights in her husband's estate.

On 14th February 1901 the curator bonis submitted a further report to the Accountant of Court, setting forth, what was in point of fact true, that the whole of his ward's moveable estate, being the fund derived from her husband's trustees, was practically exhausted, having been expended for her maintenance and board and the expenses connected with the appointment of curator and the expenses of the curatory, and that it would be necessary to sell the heritable property of his ward in order to obtain a fund for her maintenance, the income derived from the rental of her heritable property being insufficient for that purpose. The Accountant, after consideration of the circumstances, was of opinion that it had become necessary either to borrow on the security of the property or to sell the same. He accordingly advised that the same might be sold by public roup at the upset price of £600. Upon 14th March 1901 the curator bonis was, following upon the said report by the Accountant of Court, authorised by the said Sheriff of Aberdeen, Kincardine, and Banff, to sell the said heritable property. The subjects were accordingly realised at the sum of £576, and the curator bonis continued to aliment his ward out of the proceeds thereof until her death. The sum of £400, being part of the proceeds of said sale, was immediately after the sale invested upon a heritable bond over subjects in Aberdeen. The remainder was deposited in bank.

At the death of Mrs M'Adam the balance of funds remaining in the hands of her curator amounted to £452, 4s. 1d., consisting of the before-mentioned heritable bond for £400, and a sum of £52, 4s. 1d. in bank.

Questions having arisen as to whether Mrs M'Adam's estate was to be considered heritable or moveable quoad succession, this special case was brought.

The parties to the special case were (1) Alexander Souter, Mrs M'Adam's executordative, first party; (2) the said Alexander Souter, as her heir-at-law second party; and (3) William Souter and others, her whole next-of-kin and representatives in mobilibus, third parties.

The questions of law were:—“(1) Was the estate left by the deceased Mrs Mary Souter or M'Adam heritable quoad succession at the date of her death? or (2) Was the said estate moveable quoad succession, and does it fall to be divided among the parties of the third part?

Argued for the first and third parties—The estate of the deceased was moveable property quoad succession. There was here, in the circumstances, an absolute necessity on the curator to sell the estate. The ward could not have been maintained otherwise. Accordingly the sale was equivalent

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to an act by the ward herself, and had the effect of converting the heritable estate into a sum of money, which on her death fell to be divided among her heirs in mobilibus— Kennedy v. Kennedy, November 15, 1843, 6 D. 40; Macfarlane v. Greig, February 26, 1895, 22 R. 405. 32 S.L.R. 299.

Argued for the second parties—The mere fact that by the act of the curator the heritable property had been sold and converted into money did not alter its character quoad succession. It was a mere act of administration of the curator, and a curator had no authority to alter the succession of the person whose estate he administered— per Lord M'Laren, Macfarlane v. Greig, Feb. 26, 1895, 22 R. 405, at p. 409, 32 S.L.R. 299. This sale was not a “necessary” act of administration, though it might have been a beneficial act. The word “necessary” in the cases on this matter meant “inevitable in point of law,” and here the curator, instead of selling, might have raised money by borrowing on the security of the heritable property. The present case was indistinguishable in principle from Moncrieff v. Miln, July 16, 1856, 18 D. 1286, and the price was, in the circumstances, simply a surrogatum for the subjects.