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case, if he has one, depends on the averment that the railing was dangerous, and that the defenders knew that. Now, a person cannot make his case relevant by merely affixing the red label of danger to an arrangement which does not commend itself to him. Vituperative averments are not necessarily relevant averments. For aught that appears on this record similar railings may have existed for an indefinite period, and may to-day exist not only in this park but in every such park in Scotland. It is not averred that the arrangement is unusual, far less that it had in the past led to any accident. What I am asked to affirm is that the defenders were bound to contemplate as likely that a boy of ten, in stepping over a railing 20 inches high, would slip and fall upon it, and so injure himself. The contention

seems to me extravagant. The spiked railing was not in any true sense the cause of the accident. It was rather the occasion of the accident. The cause of the accident was the boy's slip. If the railing had been flat instead of spiked, he might, in the circumstances which he avers, have sustained injury just the same. No doubt the injury would not have been so severe; but that fact cannot affect the legal principle upon which it is sought to make the defenders liable. The accident appears to me to have been a pure mishap, for which no one is in law responsible. It might have happened even if the defenders had provided a nursemaid to look after the children who played in their park.

Now, the doctrine of relevancy is deeply rooted in our law, and, if it is to continue to have any operative effect at all, then I think it should apply in this case. If the pursuer is to be held entitled to enquiry here, then-if I may borrow and adapt an historic phrase-we may "shut our books on the doctrine of relevancy.

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I am of opinion that the judgment of the Sheriff-Substitute should be affirmed, and the appeal dismissed.

Counsel for Pursuer, Duffes; Agents, W. G. Leechman & Co., Solicitors, for John Cassells, Hamilton.-Counsel for Defender, Keith; Agents, Laing & Motherwell, W.S.

W. R. G.

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That the petitioners are the tutors nominate and assumed of Miss Elspeth Mary Campbell Hamilton of Dalserf under and in virtue of the contract of marriage entered into between Charles Campbell Henderson - Hamilton and Ann Louisa Hardin Robertson Shersby or Henderson-Hamilton, dated 28th September, and registered in the Books of Council and Session 9th November 1914. The said Miss Elspeth Mary Campbell Hamilton is a pupil, she having been born on 29th July 1915. Her parents are both dead, and she is the proprietrix of the estate of Dalserf in the county of Lanark.

That the petitioners find it expedient to make the present application to obtain the sanction of the Court (1) to their actings in relation to the payment of James Leslie Campbell Henderson-Hamilton, of allowances made by them for the maintenance the ward's cousin and next heir, amounting to £612, 10s..

That the petitioners placed themselves under the supervision of the Accountant of Court and have lodged with him reports setting forth the circumstances in which it has become necessary for them to make the above-mentioned applications. The reports and the opinion of the Accountant of Court thereon are produced . and printed...


That there are no parties other than the ward interested in the present application.

The following narrative of the circumstances


February 2, 1924.



2ND DIV. under which the allowances were paid is taken from the opinion of the Lord Justice-Clerk: Hamil- 66 ton's The questions which we are invited to Tutors-determine arise out of a note presented to Lord Murray by the tutors nominate and assumed February 2, of Miss Elspeth Mary Campbell Hamilton. These tutors were appointed under a contract of marriage, dated in 1914, between the parents of the ward. She is now over eight years of age, and is proprietor of the estate of Dalserf. The circumstances under which the note is presented are peculiar. The grandmother of the ward was liferentrix of Dalserf. The fiars under the destination of the estate were her sons Charles and James. Both were killed in the field during the year 1915. The ward is a daughter of Charles, and the next heir to the estate is a posthumous child of James. By his marriage contract Charles bound himself, if and when he succeeded to the estate of Dalserf, to charge upon it annuities in favour of his father and his brother James not exceeding £350 per annum; but, as he predeceased his mother, that obligation did not mature. His mother, however, contributed £150 per annum to the support of James's child until the date of her death in 1917. The child was really unprovided for, as his father left no estate apart from his widow's annuity from the funds of the Faculty of Advocates and his gratuity from the War Office. After the death of the liferentrix the tutors of the ward continued to pay £150 per annum to James's child till 1921, when, upon his ceeding to certain estate, they ceased to make that payment. The amount of the payments which up to that date they had made to the next heir is £621, 10s. The note prays the Court to sanction these payments. It also asks the sanction of the Court to a charge being laid upon the estate of Dalserf in respect of the


estate duty, amounting to £2578, 9s. 4d., which was paid by the tutors on the death of the liferenter. It should be added that the

Accountant of Court has reported against both branches of the application made by the petitioners."

On the death of James's son's grandfather in 1921, the pupil became immediately entitled to the income from the residue of the grandfather's estate, estimated to amount to £10,000. Further payments were then discontinued by

the tutors.

On 13th December 1923 the Lord Ordinary (Constable) reported the application to the

Second Division.

Lord Constable [after narrating the facts proceeded]. -While the circumstances of the payments were thus exceptional and urgent, the past decisions of the Court present serious difficulties in the way of their being sanctioned. There was no legally

enforceable obligation on the pupil to aliment her cousin. In such circumstances the Court has

refused to sanction the payment of aliment by a curator bonis to the nephew of the ward (Court, 10 D. 822), to an insane brother (Primerose, 15 D. and to a cousin (Balfour, 26 S.L.R. 268), though in 37), to a brother in delicate health (Dunbar, 3 R. 554), all these cases the person to be alimented was the next heir, and in most of them his circumstances were necessitous and the curatory estate ample. On the other hand the principle has been recognised that the Court will sanction the continuance of allowances which had been made by the ward before his incapacity supervened (Gardner, 20 S.L.R. 165). It is submitted by the petitioners that the circumboth the father of the pupil as prospective fiar of stances of the present case are analogous, because the estate, and her grandmother as liferentrix, unequivocally recognised either an obligation or a natural duty to aliment the next heir; but, unfortunately, the pupil did not take the estate directly from either of those persons.

I should also refer to another case (Boyle, 17 D. 790) where the Court seems to have exercised a considerably wider discretion in granting authority to a factor loco tutoris to pay an annuity to an old tenant on a landed estate and his wife.


Having regard to the authorities the Accountant of Court has reported that while, in his opinion, the payments were in the circumstances justifiable, he does not feel in a position to report in favour of the application being granted.

There is the additional circumstance in the case that the sanction sought is for payments which In various cases the have been already made. Court has refused to grant special powers ex post facto (Clyne, 21 R. 849; Drummond, 21 R. 932), though exceptions have been made in special circumstances (Gilray, 3 R. 619; Blair's Curator Bonis, 1921, 1 S.L.T. 248). The special difficulties, which it was pointed out in Clyne's case might result from the ex post facto sanction of the sale of an estate, would not appear to apply in the present case.

Argued for the Petitioners: The contemplated disposition of the estate had been interfered with by the almost simultaneous death in the war of the ward's father and his brother. When viewed as a whole, the circumstances of the present case were exceptional. An allowance by a person would be continued the donor. Here, however, the ward could after incapacity had supervened in the case of not give any guidance of the nature just indicated, but such guidance could be obtained from the actings of her father and grandmother in regard to allowances proposed or Blackwood, 17 R. 1093; Bowers, 19 R. 941; actually made (Gardner, 20 S.L.R. 165; Boyle, 17 D. 790, Gordon, 4 F. 577). The babyhood of the next heir was also a consideration. The allowance was reasonable and necessary and would have been continued by the ward if she had actually attained majority. The fact that the application was ex post facto did not bar it (Clyne, 21 R. 848;

Drummond, 21 R. 932; Gilray, 3 R. 619;
Blair's Curator Bonis, 1921, 1 S.L.T. 248).
On 2nd February 1924 the Court directed the
Lord Ordinary to grant the crave in branch
(1) of the prayer of the note.


unimpaired, he would in all probability have 2ND DIV.
sanctioned an eleemosynary allowance, they Hamil-
may competently do so on his behalf. If ton's
that be a sound principle, its application to Tutors-
this case is too obvious for comment. The Petrs.
Lord Ordinary seems, however, to have felt February 2,
embarrassed by the decisions in the following
cases, in which the Court refused to sanction
the payment of aliment by a curator bonis:
Court (10 D. 822) (to a nephew of the ward),
Stewart or Primerose (15 D. 37) (to an insane
brother), Dunbar (3 R. 554) (to a brother in
delicate health), and Balfour (26 S.L.R. 268)
(to a cousin). To these cases may be added the
case of Robertson (25 Scot. Jur. 554), where the
proposed beneficiary was a sister. The first

The Lord Justice-Clerk (Alness) [after the
narrative above quoted proceeded].-Argu-
ment in support of the note was heard by Lord
Constable on behalf of Lord Murray, and he
has reported the case to this Division. It
is to be observed. in limine that the Lord
Ordinary and the Accountant of Court concur
in regarding the application as exceptional
and indeed urgent, but they consider that
certain decided cases present a formidable
obstacle in the way of granting it. Two observation to be made upon these cases is
reflections at once suggest themselves upon
perusal of the reports by the Lord Ordinary
and by the Accountant. The first is this:
that the difficulty which has emerged is solely
due to the war tragedy whereby Charles and
James lost their lives. And the second is
this, that, had Charles survived his mother
and taken the estate, the next heir would have
been supported in terms of his marriage
contract obligation. In other words, Charles,
had he survived, would have been doing just
what the applicants have been doing. Two
further considerations fall to be borne in mind-by the Bench that an action rather than a
(a) that the next heir was, at the time when the
payments were made, not only destitute, but
in babyhood, and (b) that the ward is heir to
an estate which yields an income of £4500 a
year. The concursus of circumstances to
which I have alluded renders the present
application, in my judgment, not only excep,
tional, but unique.

Of the cases cited, that of Gardner (20 S.L.R. 165) probably presents the closest analogy to the present. There the Court recognised the principle that the continuance of an allowance made by a ward, before mental incapacity supervened, may properly be sanctioned by them after incapacity has supervened. It is argued in the present case that, though it is true that the line of action followed by the tutors was not laid down by the ward herself, who, in point of fact, was an infant, it was nevertheless laid down by her father and by her grandmother, both of whom recognised the natural obligation which lay upon them to make a payment for the aliment of the next heir. The cases of Blackwood (17 R. 1093) and Bowers v. Pringle Pattison's Curator Bonis (19 R. 941) are substantially to the same effect as Gardner. The cases of Boyle (17 D. 790) and Gordon's Curator Bonis (4 F. 577) go further, and indicate that, even where nothing has been done by the ward before incapacity, if the Court are satisfied that, had his health remained

that, while relationship may have formed an
element in their decision, it is clear that the
Court thought it proper to review all the cir-
cumstances in which the application was made
and reach a conclusion upon them. Further,
when carefully examined, I am of opinion that
the cases referred to by no means conclude the
issue against the applicants. In Court, the
decision, in so far as the report which, I
venture to think, is not a satisfactory one-
bears, turned largely upon the competency of
the application there made. It was suggested

summary petition would have been a more
appropriate form of process, and it was also
pointed out that the proposed object of the
curator's bounty might not after all be the
heir of his ward. The petition was withdrawn.
In Stewart or Primerose the chief consideration
which appears to have weighed with the Lord
Justice-Clerk in refusing the application appears
to have been that, if it were granted, a certain
War Office allowance which was being enjoyed
by the lunatic might be withdrawn. But it
is no doubt true that both the Lord Justice-
Clerk and Lord Cockburn express dislike of
the application which was made per se. In
Dunbar, it was held that the curator should
decide for himself whether an allowance from
the estate under his control should be made
to a destitute relative of his ward—as indeed
the tutors have in the first instance done here

-and that the ab ante intervention of the Court,
was inappropriate. There was, however, no
suggestion made that it was beyond the power of
the curator to make the allowance proposed.
Indeed, the decision suggests a contrary
conclusion. In Balfour, the proposal was that
a number of relations of the ward, one of whom
at least was able to earn good wages, should be
alimented from their cousin's estate, and that
out of the amount of the aliment proposed
certain houses should be repaired. It is not
surprising that that application was refused.



2ND DIV. In Robertson, where the Court declined to grant the application, the circumstances were very ton's special. The sister of the incapax appears Tutors to have been grown up, the parties were on Petrs. the border line of pauperism, and the amount February 2, of estate available for the proposed gift was small. Moreover, it is to be observed that the Lord President said, in dealing with the question, "We cannot deal with it in this shape." As in Court, the decision seems to have turned, in part at least, on the form of process which was adopted. So far from these cases being destructive of the success of the present application, they appear to me inferentially to support it. They do not decide that in no circumstances can such an application as the present be granted. Indeed, several of them postulate the contrary. In their circumstances they are widely different from the case in hand. Further, I apprehend that, though the applications presented were negatived, the rigidity of the rules which formerly obtained with regard to these matters has been considerably relaxed in these later days. And if it be said in this case that the tutors are proposing to take A's money and give it to B, a fair riposte is that they are merely restoring to B that portion of A's money of which the war deprived him.

That the application is subsequent to and not antecedent to the payments which have been made does not in the least move me. The need of the next heir was obviously urgent, and it was met. That seems reasonable. The cases of Clyne (21 R. 849) and Drummond (21 R. 932), where ex post facto ratification of a transaction already carried through was refused, differ so widely in their circumstances from the present, and are indeed so special, that they appear to me to have no bearing on the controversy with which we are concerned. It is to be observed, however, that in Drummond the competency of ratification by the Court of a completed transaction was expressly recognised. The cases of Gilray (3 R. 619) and Blair's Curator Bonis (1921, 1 S.L.T. 248), on the other hand, where ex post facto sanction was given, appear to me to be in point.

To sum up I think the present application is unique in its circumstances. I think that these circumstances are so compelling in their character that the first part of the application falls to be granted. And I also think that there is nothing in the decided cases which renders that course inexpedient, far less incompetent. Neither precedent nor principle forbid the ratification sought. [His Lordship then dealt with the second branch of the application.]

I suggest to your Lordships, therefore, that we should grant the first crave of the note.

Lord Anderson.-The prayer of the note craves the Court (1) to sanction, ex post facto, the payment of allowances, amounting to £612, 10s., made by the petitioners for the maintenance of James Leslie Campbell HendersonHamilton, the cousin and heir-at-law of the ward, and (2) to approve of the estate of Dalserf being charged by the petitioners with the estate duty, amounting to £2518, 9s. 4d., paid by the petitioners in respect of the death of the ward's grandmother, who was the predecessor of the ward in the said estate.

With regard to the first crave, the Accountant of Court reports that, while he considers that the allowances were justifiable, he does not feel in a position, in view of certain decisions to which he refers, to report in favour of the crave being granted. The view of the Accountant of Court appears to be that if the allowances are sanctioned the Court will be going further than has been done in any previous case. I am not satisfied that this view is well founded, but, if it be so, the circumstances of the present case are much more cogent in favour of the application than those of any decision to which we were referred, and, in my opinion, fully justify the Court in granting the sanction which is craved. The general rule, in a question of this nature, is well settled. It is that the Court will not sanction the expendi→ ture of the funds of a ward for the purpose of the maintenance of a person whom the ward is under no legal obligation to support (Court, 10 D. 822; Primerose, 15 D. 37; Dunbar, 3 R. 554; Balfour, 26 S.L.R. 268). If there is legal obligation to maintain, aliment may be exacted by means of an ordinary action. While this is the general rule, expenditure of this nature may be sanctioned when made in special circumstances. What are these special! circumstances? (1) There must, in the first place, be ample funds, in excess of what is required for the ward's own maintenance, to meet the proposed allowances (Primerose,. supra; Robertson, 25 Scot. Jur. 554). (2) As a rule, the ward and the person to be benefited, must be of kin to each other (see, however, Boyle, 17 D. 790, where the Court empowered the factor loco tutoris of a pupil landlord to grant annuities to aged tenants).. (3) The proposed beneficiary must be destitute.. In the present case it is a circumstance in favour of the application that the allowances were made, not to an adult, but to a child who was of an age so tender as to be incapable of doing anything to maintain himself. These are essential conditions in all cases, but they are not in themselves sufficient to justify the suggested expenditure. There must be other favouring circumstances. In the present case there are these further exceptional circum

stances. (a) The person benefited is the heirat-law of the ward. (b) The estate in which he has a contingent interest has an annual rental of over £3000. It does not seem to be inequitable to allow a part of that large revenue to be utilised to save from destitution one who may eventually succeed to the whole estate. (c) The Court is ready to sanction the continuance of an allowance which has been paid by a ward before incapacity supervened, on the principle that it thereby authorises what the ward would presumably have done had he remained capax (Gardner, 20 S.L.R. 165; Blackwood, 17 R. 1093; Bowers, 19 R. 941). It is a justifiable extension of this principle to sanction the granting of a provision which it is reasonably probable that the ward would have made had not mental incapacity supervened (Gordon, 4 F. 578).

In the present case, the father of the ward was under obligation to make a provision in favour of his younger brother, the father of the beneficiary. Had this been done, the boy would have had the benefit of that provision. Accordingly, the petitioners in making the foresaid allowances appear to have done, as matter of reasonable administration, what the boy's uncle, had he survived the war, would have done as matter of obligation. These exceptional circumstances seem to me to afford ample justification to the Court for sanctioning the allowances. It is true that the sanction craved is ex post facto. But the circumstances which called for intervention were urgent and, in such a case, there is no reason why ex post facto approval by the Court may not be given (Gilray, 3 R. 619; Blair's Curator Bonis, 1921, 1 S.L.T. 248).

I therefore agree that the first crave of the note should be granted. [His Lordship then dealt with the second crave.]

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to trustees under a trust disposition and settlement 1ST DIV. "in trust for the liferent use of my said son so long

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as his mother [the testator's divorced wife] shall Inland
remain alive "-Liferent conditional either on the Revenue v.
death of the testator's second wife, or on her relin- Wemyss.
quishment of the occupation of the castle, policies,
January 26,
and shootings, and further upon the testator's son
conforming to the testator's prohibition against
allowing the testator's first wife or any member of
her family to reside at the castle or on any part of the
estates-Direction that should the testator's son
contravene this prohibition, my trustees shall
forthwith cease to allow him the liferent use of said
castle, policies, and others "Trustees directed to
maintain and keep in good repair, inter alia, the
mansion-house and the offices, policies, and grounds
connected therewith, which subjects were not to be
let unless the trustees should deem such a course
expedient-Right of the testator's son to occupy
the said subjects terminable at the will of the
trustees should they deem it expedient to let-
Testator's son obtaining the occupation of said
subjects-Liability of such liferenter to include
the value of said subjects in his statement of
annual income-Held that in these circumstances
the beneficial liferenter, who was completely cut off
from the opportunity of enjoying any civil fruits
obtainable from the subjects and had a mere personal
privilege of occupation, must be considered to have
no income arising from "ownership of lands" in
respect of said subjects.

Revenue-Super-tax-Marriage contract funds-Con-
veyance by a husband to his marriage contract
trustees of his whole right, title, and interest in
certain securities, subject to a jointure and other
three charges created by his father, and a fourth
charge created by himself, and subject also to a
reserved power to charge them to the further extent
of £8000-Exercise of this latter power by the hus-
band and the creation of a fifth charge-Income
arising to the marriage contract trustees from these
securities payable to the husband during his life;
if he predeceased his wife, to her for life; the capital
being held for the children of the marriage-Securities
to revert to the husband if his wife predeceased him
and no child lived to take a vested interest-Right
to the husband to have the securities made over to
him at any time on payment to the trustees of
£100,000, which sum should be held in the same way
for the same purposes, and subject to the same con-
ditions as the securities-Clause in the contract
whereby in the event of certain of the said securities
producing dividends exceeding the rate of 12 per
cent., part of the excess was to be retained by the
trustees and used to reduce and discharge the fourth
and fifth charges imposed on the securities-Further
provisions applicable to the event of the fourth and
fifth charges being discharged out of the excess divi-
dends which shewed the importance of the husband's
personal interest in the reduction and discharge of
these two charges-Dividends from said securities
exceeding the rate of 12 per cent.-Claim by the
Inland Revenue that, inasmuch as the excess was
employed in paying off the husband's debts (repre-
sented by the said fourth and fifth charges), such
excess formed part of his income for purposes of
super-tax-Held that, as the direction to use the excess
income for the purpose of increasing the value of the
provisions made in favour of those who were within
the consideration of the marriage was as irrevocable
by the husband as it was unattachable by his creditors,
it was impossible to regard such excess income as
forming part of the income of the husband.

Exchequer Cause.

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