Scottish Court of Session Decisions

James M'Fadzean, farmer, Langside Farm, Minburn, Alberta, Canada, as guardian and administrator-in-law of his pupil child Robert M'Fadzean, residing with him, petitioner, presented a petition for power to complete title habili modo to certain heritable property in Scotland and for power of sale.

The petition stated—“That the petitioner's wife Mrs Margaret Malcolm Gray or M'Fadzean, who resided with him, died intestate and domiciled in Alberta, Canada, on 13th April 1916, survived by the petitioner and their two children, the said Robert M'Fadzean and a daughter, who are both in pupillarity. The said Mrs Margaret Malcolm Gray or M'Fadzean died infeft in one-sixth share of the house and two acres or thereby of ground known as Crossbush or Crossbuss in the parish of Riccarton and county of Ayr, all as more particularly described in the prayer hereof. Her heir in heritage is the said Robert M'Fadzean, and according to the law of Alberta the petitioner is his legal

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guardian and administrator-in-law. For some time prior to the death of petitioner's said wife negotiations had been proceeding among the co-owners of the said property with a view to the sale thereof. Owing to its insanitary condition and poor state of repair the said house could not be made lettable or habitable without considerable expenditure. The ward has no other heritage in Scotland, and the cost of the repairs required would be out of proportion to his small interest in the property. If the property were retained in the said condition it would be unsaleable when the ward attained majority. In or about January 1916 an offer of £400 for the said property was received by the said co-owners. The said offer had not been formally accepted by the whole co-owners prior to the death of the petitioner's said wife, but she had intimated her willingness to concur in the acceptance of the said offer. It is necessary and expedient and in the interest of the petitioner's ward that the said offer should be accepted. The other co-owners intend to proceed with the sale. With their consent the proposed purchaser has already consigned the price and entered into possession of the property, and at her own expense is having repairs executed which were required by the sanitary authorities. The granting of this application will avoid the expense of an action of division and sale, and the petitioner believes and avers that no better price can be obtained for the said property. This petition is brought before your Lordships as an appeal to the nobile officium of the Court.”

The Court remitted to Mr William Smith, W.S., to inquire into the facts and as to the expediency of granting the crave. He confirmed the facts set forth in the petition; stated that “a purchaser—Mrs Tuffnell, a lady interested in an adjoining; estate—was luckily found, who agreed to give a sum of £400, a price which, looking to valuations (including a partial Government valuation), rentals, and other documents examined, seems not unreasonable;” and referred to the following authorities Fraser on Parent and Child (3rd ed.), p. 752; Carruthers' Trustees, 1896, 24 R. 238, 34 S.L.R. 166; Webb v. Clelland's Trustees, 1904, 6 F. 274, 41 S.L.R. 229; Allan's Trustees, 1896, 24 R. 238, 34 S.L.R. 166, 532; Lord Clinton, 1875, 3 R. 62, 13 S.L.R. 31; Colt v. Colt, 1800, M. 16,387; Logan, 1897, 25 R. 51, 35 S.L.R. 51.

The petitioner argued—A Scottish Court only could order the transference of Scottish heritage, being the forum conveniens. Mere advantage to the pupil would not induce the Court to authorise the alienation of the pupil's heritage, but where the sale could be shown to be necessary the Court would grant such power. In this case the sale was highly expedient, as delay would probably render the subjects worthless. The granting of the petition could in no wise injure the pupil's estate. If need be the money could be consigned.

The hearing having been continued for further information, on 9th December 1916 counsel informed the Court that letters of guardianship and letters of administration by the Canadian Courts had been lodged in process; that the petitioner had been compelled to get two sureties for £2000 in order to obtain these; that he was also the proprietor of his farm.

The Court granted the authority craved.