Ward v. 1919. 1ST DIV. is alleged to have died in consequence of injuries received by an accident arising out of and in the Walker. course of her employment presents a claim for November 26, compensation under the Act. The question is, how is that claim to be brought before the Court the statutory arbitrator. I answer in the words of the most recent writer on Court of Session Practice (Maclaren on Court of Session Practice, p. 169): "Where there is no legal guardian the action is brought in the name of the pupil, and the judge, after the case is brought into Court, will appoint a curator ad litem, with whose concurrence the action proceeds." This procedure has the sanction of immemorial practice reinforced by the highest authority. And, although it may seem to be inconsistent with strict legal principle, the procedure is not, in my opinion, now open to reconsideration. I do not share the views on this subject expressed by Lord Johnston in Macdonald's Tr. v. Medhurst (1915 S.C. 879), that in approving the practice to which I have referred the Court condoned an irregularity amounting to incompetency and turned a blind eye to the facts. Nor do I think the proper procedure would be to resort to the appointment of a factor loco tutoris. The procedure uniformly followed has worked well in actual experience; and no good reason for disturbing it has ever been suggested. Neither text-writers nor judges have ever expressed any doubt or difficulty about the propriety of the established practice. Erskine (I. vii. 13) and Fraser (Parent and Child, 2nd ed., p. 152 et seq.) state the practice without any suggestion of doubt as to its propriety, although these learned writers are quite alive to the fact that a pupil has no persona standi. To the same effect Darling (pp. 88 and 89), MacLaurin (p. 96), Shand (p. 140), and Mackay (Manual of Practice, p. 148), in their text books on Practice lay down the rule explicitly and without qualification. As far back as 1740 we find the practice in full observance. Thus in Johnston v. Johnston (M. 16346), "it was observed as a nullity in an inhibition, that it was raised in a pupil's name on a dependence, before his tutor ad litem was appointed; which the Lords repelled, as being no more a nullity in the inhibition than it was in the process itself, which is regularly enough brought first into Court in the pupil's name, and the tutor ad litem thereafter appointed." The practice again received the sanction of the Court in 1798 in the case of Macneil v. Macneils (M. 16384). There was no specialty in these two old cases. In 1828 we find what I cannot but regard as the most authoritative statement of the law and practice in the case of Sinclair (6 S. 336), where Lord Balgray said, in an opinion concurred in by nine other judges: "A pupil or minor may be either pursuer or defender. If he is a pursuer, and either his guardians do not concur, or he has none at all, then the defender is entitled to object in limine to the procedure, till the guardians concur or a curator ad litem is appointed, and which must be done by the judge, and if the fact appears in judicio, it is perhaps pars judicis to apply the remedy." It may be said that this statement of the law and practice of Scotland was obiter, but it was a very deliberate opinion of very eminent judges, and was in perfect harmony with prior and subsequent practice. In the same year, however, the point was decided in the case of J. & M. Young (7 S. 220), where the Court refused a petition in name of a pupil to have a curator ad litem appointed in an action about to be raised, on the ground that the correct course to follow was to raise the summons first, and then after the summons had come into Court to apply for the appointment of the curator ad litem. Eight years later we find a full statement of the law in an opinion of Lord Corehouse (Ordinary) in the case of Keith v. Archer (15 S. 116). "It is true," his Lordship, "that a pupil, by himself, has no persona standi in judicio, but as soon as his tutor or administrator concurs in the action, the defect of his nonage is supplied, because there is a pursuer insisting who has a persona standi. In practice, this concurrence, even when given subsequently to the raising of the action, operates retro, and validates the pursuit. Thus, if a pupil has no tutor or administrator, an action nevertheless may be brought in his own name, and after it comes into Court, a tutor ad litem may be appointed, with whose concurrence the action proceeds; and it is no objection that the summons was raised and executed in the pupil's name alone, and before any tutor ad litem was appointed." On reclaiming note to the First Division of the Court, no doubt was expressed regarding the soundness of this opinion. Speaking of a summons raised at the instance of a pupil alone Lord Balgray observed—“ such a summons is made valid if a tutor ad litem be appointed by the judge when it comes before him." Finally in 1861 in the case of Hamilton (24 D. 31), the House of Lords allowed a pupil of five months old to be sisted as a party in an action of multiplepoinding, and remitted the cause to the Court of Session with directions to appoint a tutor ad litem to the pupil. The Court made the appointment. This, then, being the state of the authorities, I entertain no doubt that the action before us ought to be allowed to proceed although raised at the instance of a pupil alone, and that the judge ought to appoint a curator ad litem to the pupil. I gather from the note of the learned arbitrator that this is the course which he would have followed had he acted upon his own view of the proper procedure, but in deference to the opinion of Lord Johnston in the case of Macdonald's Tr. v. Medhurst, he deemed it right to refuse to allow the action to proceed. On the general question raised I do not, as I said at the outset, share REPORTS-1920, 1 SCOTS LAW TIMES. Lord Johnston's doubt. The general question was not argued in that case, and consequently his Lordship had not before him the body of authority to which I have adverted, which places the matter, as I think, entirely outside the region of controversy. I express no opinion on the question here raised in so far as it relates to special cases, where, no doubt, other considerations arise. But even as regards them I am not to be held as a dissentient from what I understand to be the existing practice. As the topic may, however, yet arise for discussion in this Court, I desire once again expressly to reserve my opinion upon it. On the question now before us it seems to me impossible, even were it desirable, to go back upon the practice which has prevailed for time immemorial. Accordingly, I propose that we should answer the first question of law now before us in the affirmative, and the second in the negative. 5 Ward v. practice is stated to be as above laid down in 1ST DIV. In Fraser on Parent and Child, 3rd ed., Lord Skerrington.-As one who has been familiar with the practice of the Scottish Courts for the last forty years, I was surprised-and I still am surprised to hear it doubted that according to our practice an action may be raised in name of a pupil who has no guardian, and that, after the case has been brought into Court, the defect in the instance may be validated by the appointment of a curator ad litem. The question is really one of fact-What has been the practice in a matter of frequent though not of daily occurrence, namely, the necessity of instituting an action on behalf of a pupil who has no legal guardian? The text-books and the institutional writers point to the course which I have described. Lord Mackenzie.-The first question put by the learned arbiter is, "Was it competent for me to make the instance valid by appointing a tutor ad litem to the pupil pursuer?' In my opinion this question should be answered in the affirmative. I do not consider it necessary to go at any length into the matter, for it is clearly stated in the text-writers that such a course is competent when a pupil is pursuer, and the authorities cited support the statements in the text. Thus in Mackay's Manual, published in 1893, at p. 148 it is stated: "When the pupil has no legal guardian, the action is brought in the pupil's name, and the tutor ad litem appointed after it is in Court, with whose concurrence the action proceeds. Such tutor ad litem will only be appointed for a particular action, not for I am not impressed by the circumstance that actions in general, and only after the action is in many of the decisions referred to by the textCourt, and while it is in dependence." The cases writers did not directly decide the point but which support this are Johnston v. Johnston rather assumed it. A rule either of law or of (M. 16346), Macneil v. Macneils (M. 16384), practice may be so familiar and well settled as Sinclair v. Stark (6 S. 336), Keith v. Archer to make a direct decision unlikely because un(15 S. 118), in which Lord Corehouse said: necessary. It has been objected that the practice "Thus, if a pupil has no tutor or adminstrator, is not logical. This objection, however true, is an action nevertheless may be brought in his irrelevant to the question whether the practice own name, and after it comes into Court, exists. Lastly, we are not concerned with the a tutor ad litem may be appointed, with suggestion that the practice might be abused to whose concurrence the action proceeds; the prejudice either of the pupil or of the third and it is no objection that the summons party with whom he litigates. Such abuse is was raised and executed in the pupil's name not probable, but if it occurred, means could be alone, and before any tutor ad litem was found to restrain it. It seems to be forgotten appointed"; Young (7 S. 220), in which the that the first duty of a curator ad litem is to conCourt refused a petition in name of a minor and sider whether the action, however well founded an infant to have a curator ad litem appointed on its merits, ought in the interests of the ward in an action about to be raised, in respect of to be proceeded with or whether it might not there being no action actually in dependence, better be brought anew after his majority. Upon Lord Glenlee saying "I doubt greatly whether such a question a curator ad litem may commit there is any risk. The summons may be an error of judgment, but so also may an validated by the after appointment of a curator ordinary guardian. ad litem. They should raise their summons first and then apply for the appointment"; Ferguson's Trs. v. Hamilton (23 D. 1290). The The only other question is whether there is any distinction as regards this matter between an ordinary action and an application to a Sheriff November 26, 1919. Ward v. November 26, 1919. 1ST DIV. as arbitrator under the Workmen's Compensation Act asking him to adjudicate upon a claim at Walker. the instance of a pupil as the dependant of a deceased workman. I have not been able to discover any such distinction. The dependant does not require to select an arbitrator, but in the absence of an agreement to the contrary has no other course open to him except to apply to the Sheriff. The first question ought, therefore, to be answered in the affirmative, and the second in the negative. Lord Cullen.-The practice which the appellant invokes is one of very long standing, and the citations given to us shew that it is duly sanctioned by authority which we are bound to follow. It may be that the practice is in some respects illogical, and also that it might have been more satisfactory had it been more affected by defined conditions or regulations than it is, but such conditions are not hujus loci. Counsel for Pursuer, Fraser, K.C., Aitchison; Agents, Erskine Dods & Rhind, S.S.C.-Counsel for Defender, Watt K.C., Keith; Agents, Alex. Morison & Co., W.S. 2. SECOND DIVISION. M. D. (The Lord Justice-Clerk, Lords Dundas, Salvesen, and Guthrie.) 6th December 1919. was presented for the opinion of the Court of Session. The first parties were the surviving trustees and executors acting under the will of the testatrix; the second party was Mrs Jeannie Cowie Drysdale Innes or Bowen, the only child and daughter of the testatrix; and the third parties were (1) Captain Reginald Charles Bowen, son of the second party and fiar of the estate in the event of his surviving his mother, and (2) the fiars who took in the event of Captain Bowen not surviving his mother. The case set forth inter alia: 1894. 2. The testatrix left a will, dated 18th September 1889, registered in the Books of Council and Session on 31st March 1894, and recorded in the Court Books of the Commissariot, Edinburgh, on 26th April The second party [i.e. Mrs Bowen] is the wife of a domiciled Irishman, to whom she was married in 1885. She has been living apart from him for many years. By the Married Woman's Property Act 1882, which is applicable to Ireland, it is provided that a married woman may sue in all respects as if she were unmarried, and her husband need not be joined with her as plaintiff or defendant, or made a party to any action or other legal proceedings brought by or taken against her. 3. By her will the testatrix, after appointing trustees and executors, authorising payment of debts, funeral and testamentary expenses, and bequeathing certain legacies, directed the income of the residue of her estate to be paid to the second party during her natural life, and after her death the testatrix directed the residue to be handed over to such child or children of the second party as she might by her will direct, and failing such direction, then to all her children equally, or if she left only one, then to him or her absolutely. In the event of the second party dying without leaving any issue, then the testatrix directed the residue to be divided amongst the In Innes' Trustees v. Bowen. Succession-Accumulations-Thellusson Act (39 & 40 Geo. III. cap. 98)-Election Equitable compensation-digent Gentlewomen's Fund, Edinburgh (described Applicability of Thellusson Act to accumulation for equitable compensation-Testatrix directing income of her estate to be paid to her daughter during her life, and handed over to the daughter's children-Further direc after the daughter's death directing the residue to be tion that, in the event of the daughter dying without leaving issue, the residue was to be divided among certain named beneficiaries-Daughter claiming and receiving payment of legitim, and trustees retaining and accumulating the income for twenty-one years-Held (dissenting Lord Salvesen) that further accumulation of income was prohibited by the Thellusson Act, and that the daughter was entitled to receive the future income as heir ab intestato Hutchison v. Grant's Trs. (1913 S.C. 1211) approved. Special Case. Mrs Jane or Jeannie Drysdale or Innes (the testatrix), 26 Castle Terrace, Edinburgh, widow of Edward Hally Innes of Dunbar House, Enniskillen, in the county of Fermanagh, Ireland, died at Edinburgh on 23rd November 1893, predeceased by her husband, and survived by her only child, her daughter, Mrs Jeannie Cowie Drysdale Innes or Bowen. Questions having arisen as to the rights of parties in a certain portion of the testatrix's estate, a special case in error in her will as the Indigent and Aged Gentlewomen's Fund), the now deceased Isabella Drysdale, Mrs Janet Kirk, Mrs Arabella Louisa Howson, and Llewllyn Drysdale Innes Graham in equal shares. 4. The second party has one child, Captain Reginald Charles Bowen.. 5. The trustees nominated by the testatrix accepted office and confirmed to estate amounting to £14,810, 18s. 10d. 6. The second party claimed legitim from the estate of the testatrix, and instituted an action in this Court against the trustees of the testatrix, to have it found and declared that the testatrix was, at the date of her death, domiciled in Scotland, and that she was entitled to such legitim. By interlocutor, dated 19th November 1895, the Court found sions of the summons, and by interlocutor, dated and declared in terms of the declaratory conclu11th March 1896, the Court found that the balance of legitim due by the trustees of the testatrix to the second party, exclusive of her reserved claim therein mentioned, with interest as at 3rd February 1896, amounted to £6381, 15s. 9d., with certain additional interest as mentioned in the interlocutor, and ordained the trustees to pay her the said sums on delivery by her of a discharge. The said sum of £6381, 15s. 9d. was thereafter paid to the second party; and by discharge granted by her, dated 12th REPORTS-1920, 1 SCOTS LAW TIMES. and 13th March 1896, and registered in the Books of Council and Session on 5th July 1910, she acknowledged receipt of the said sum of £6381, 15g. 9d. and all interest due thereon. Thereafter a settlement took place of said reserved claim above mentioned, conform to agreement and discharge by and between the said trustees and the second party, dated 11th, 12th, 14th, and 15th July 1898, and registered in the Books of Council and Session on 16th July 1909. 7. The trustees of the testatrix, since settling the second party's legitim, have accumulated the income of the remaining trust-estate, and have duly made up periodical accounts of charge and discharge, which have been audited by the Auditor of the Court of Session. From the account of charge and discharge, closing on 30th June 1914, the trust-estate, exclusive of certain Irish assets at that date, but including the said accumulations of income, amounted to £2408, 3s. 44d. The annual income of the trustestate is estimated at about £118 (including therein about £43, being the share falling to the trust of the testatrix of the net annual income received from the said Irish estates), but this income is subject to the legal expense of administration. The accumulated revenue which, but for the second party claiming legitim, would have fallen to be paid to her as liferentrix of the residue of the testatrix under the provisions of her will, is estimated to have approximately amounted at 23rd November 1914 (being twenty-one years from the date of testatrix's death), £1250 0 0 to 6381 15 9 £5131 15 9 Deducting this sum from the amount The questions raised related to whether the first parties were entitled to continue accumulating the income from the trust estate in view of the terms of the Thellusson Act, and as to the rights of the second party therein in her capacities as heir-at-law and next-of-kin of the testatrix. The Questions of Law were as follows: 7 Innes' Trs. 1919. expressly or impliedly directed by the testatrix. 2ND DIV. : It was Argued for the First Parties Equitable compensation had been made by the trustees for twenty-one years in accordance with the decision in Macfarlane's Trs. v. Oliver (1882, 9 R. 1138), and they proposed to continue to do so. maintained that section 2 of the Thellusson Act had been repealed by section 9 of the Entail (Scotland) Act, 1914 (4 & 5 Geo. V. cap. 43), at least in so far as it applied to Scotland. The Thellusson Act applied to an express direction to accumulate, and such a direction was not present in the testatrix's will. The accumulations were not in consequence of the testatrix having settled her estate, but because her will could not be carried into effect owing to the election by the second party to take her legitim, which had been paid to her. The accumulation was intended to bring back the estate to what it was at the testatrix's death. "II. Do the provisions of the Thellusson Act The words in the Act referred to settling estates render it illegal for the first parties" so and in such manner "that accumulation to accumulate such income? of the profits or produce would take place for a "III. If question 1 is answered in the nega- longer term than twenty-one years from the tive and question 2 in the affirmative, death of the granter, but this was not a case does the income which has accrued of such a settling of an estate. In England since 23rd November 1914, and may accumulation was allowed to form a sinking hereafter accrue during the lifetime fund, and that was what was really being of the second party, fall to be paid done here. It was an unexpected developto her?" ment that the second party elected to take legitim, and the law stepped in and recouped the estate by equitable compensation. The Court were being asked to say in effect that Argued for the Second Party: The Thellusson Act applied if accumulation of income was either Innes' Trs. 1919. 2ND DIV. equitable compensation must stop after twentyone years. It was settled that not all accumuv. Bowen. lations were unlawful, and this was a mere December 6, preservation of the capital of the estate and of the nature of a sinking fund or for restoring dilapidation. The case of Hutchison v. Grant's Trs. (1913 S.C. 1211) was not distinguishable from the present, but this case was intended to obtain a review of the judgment of the Lord Ordinary in that case. There was not here really a direction to accumulate, but rather a direction to pay away at a date which must arrive. The case of Lee's Trs. v. Tinzies & Purves (cit.) was decided after a concession and accordingly could not rule the present one. Counsel also referred to Rose's Trs. v. Rose, 1916 S.C. 827; Lord v. Colvin (cit.), per Lord President M'Neill at p. 124, per Lord Ivory at p. 127, and per Lord Curriehill at p. 131; Smyth's Trs. v. Kinloch, 1880, 7 R. 1176; Mitchell's Trs. v. Fraser, 1915 S.C. 350; Lindsay's Trs., 1911 S.C. 584; In re Mason, [1891] 3 Ch. 467; In re Gardiner, [1901] 1 Ch. 697. The third parties adopted the argument of the first parties. Avizandum, 27th November 1919. On 6th December 1919 the Court (diss. Lord Salvesen) answered the first question of law in the negative, and the second and third questions in the affirmative. The Lord Justice-Clerk. This special case raises a question as to the effect of the Thellusson Act. The facts may be briefly stated: the testatrix was a widow when she made her will; it was executed in 1889. The testatrix died domiciled in Scotland in 1893. By her will she made certain provisions for her daughter (the second party) which the latter repudiated and claimed her legitim. The amount due as legitim has been paid to her. Thereupon the legal doctrine of equitable compensation came into operation under which the sums annually payable to the daughter fell to be accumulated for the benefit of those who had been prejudiced by the said second party's election until the amount abstracted as legitim had been fully compensated. The period during which the said doctrine will require to operate until full compensation has been made exceeds that allowed by the Thellusson Act. The question is whether these accumulations are subject to the provisions of the said Act. That question has been decided in the affirmative in a case admittedly indistinguishable from the present by Lord Hunter, whose judgment was not reclaimed against but is now challenged as incorrect in law. I am of opinion that Lord Hunter rightly interpreted the statute of 1800. That statute, in my opinion, prohibits all accumulations extending over a period exceeding twenty-one years after the testator's death brought about by any will or trust deed, subject to certain exceptions which do not apply in the present case. It is not necessary that the will or trust deed should expressly provide for or direct the accumulations; it is, in my opinion, sufficient that in the events which have happened, the executors or trustees, who have the duty to administer the estate, must in the discharge of their duty accumulate the interest or income beyond the period allowed by the statutes. The truster could not interfere with the second party's right to claim legitim, the truster's absolute power of disposal by will or trust deed being limited to the dead's part, but she could within limits effectively prescribe results which would follow if a claim to legitim were insisted in. But when a claim to legitim had been enforced there came into operation, in respect of the terms of the trust deed, the doctrine of equitable compensation, whereby in respect of these terms accumulation of income had to take place. That accumulation was the direct result of the trust deed, and it was the result which I think the truster must be held to have known would inevitably follow if the second party's claim to legitim were made and pressed to payment. I think, therefore, that the accumulation was directed by the trust deed so as to be struck at by the Act. This seems to me to be the result of a fair interpretation of the statute which prohibits any person from making a settlement of property so and in such a manner that an accumulation shall result as events turn out for a period in excess of the statutory limit. I think this view has been judicially accepted as the correct one in Lord v. Colvin (1860, 23 D. 111) and in Maxwell's Trs. (5 R. 248). I also refer to Matthews v. Keble (L.R., 3 Ch. 691), where Lord Cranworth's dictum that "if a testator directs his property to go in such a course that, upon certain contingencies, there must be an accumulation beyond twenty-one years, he does direct that, upon these contingencies, the accumulation shall take place beyond that time," was accepted as sound and as bringing the Act into operation. I also refer to Jarman on Wills, 4th ed., p. 313. In my opinion the cases dealing with such matters as payment of premiums on a policy of insurance or repairing property belonging to the trust are not in any way adverse to the views I have expressed. In the present case the very thing that is being done is to accumulate the produce of part of the estate, which is exactly what is prohibited. This is, in my opinion, just to accumulate the produce of those parts of the estate which but for the doctrine of equitable compensation would have been payable to the truster's daughter so as to add to the fund |