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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matheson v. Matheson and others [1889] ScotLR 26_552 (31 May 1889) URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0552.html Cite as: [1889] ScotLR 26_552, [1889] SLR 26_552 |
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Page: 552↓
[Sheriff of Dumfriesshire.
In June 1880 an executor qua factor for three pupil children was appointed and confirmed by the Sheriff of Inverness. In August 1882 he was appointed their curator bonis by the Sheriff of Dumfries, the children having meanwhile succeeded to certain legacies. The inventory and accounts
Page: 553↓
lodged with the Accountant of Court included both estates. In administering the executry estate, which consisted chiefly of the stock of a farm, large losses were incurred, and the last account lodged with the Accountant of Court closed with a balance due to the curator bonis.
In a petition for discharge of the curatory, on the ground that the whole estate was exhausted, and for decree against the wards for the balance, held that the wards were entitled to an account of the curatory estate apart from the executry estate, and that the petitioner was only entitled to discharge on payment of any balance due to them on that account.
John Matheson, farmer, Garbole, Inverness-shire, died on 5th November 1879. He was predeceased by his wife and survived by three daughters, all in pupillarity.
On 17th June 1880 Daniel Matheson, a brother of the deceased, was appointed by the Sheriff of Inverness factor for the said children, and was confirmed as executor-dative qua factor. He gave up an inventory of the personal estate of the deceased, amounting to £3051, and consisting principally of farm stock, crop, and implements on the said farm of Garbole.
In 1881 the children of the deceased became entitled under the will of a relative to a share of the residue of his estate, amounting to £1037, divisible equally among them. In June 1882 Daniel Matheson was, upon the application of a maternal uncle of the children, appointed curator bonis to them in the Sheriff Court of Dumfries, and thereafter, down to 31st December 1885, he duly lodged with the Accountant of Court annual accounts of his intromissions.
In 1887 Daniel Matheson presented a petition in the Sheriff Court of Dumfries for the recal of his appointment as curator bonis.
He averred that the Accountant of Court had found the whole of the accounts correctly stated and properly vouched; that in making up his original inventory he had, at the desire of the Accountant of Court, included not only the funds to which the wards succeeded as legatees, but also the executry of their late father, and that he had intromitted with the whole estate as curator bonis. He further averred that he had succeeded in getting the landlord's consent to a renunciation of the lease of the farm of Garbole at Whitsunday 1884, and that the farm stock and implements had been sold by public roup; that owing to the very unfavourable seasons the whole curatorial funds had been used, and that there remained a balance due to him as at 31st December 1885 of £363, 7s. 4d.
The wards, in answer, claimed that the petitioner should state a separate account with reference to the £1037, which came to them in their own right, and was not liable to the diligence of their father's creditors.
The petitioner pleaded that he was entitled (1) to discharge, as the estate was exhausted, and (2) to decree for the balance due to him.
The respondents pleaded, inter alia—“(2) The estate coming to the defenders in their own right not being liable to their father's debts, the defenders are entitled to an account of the pursuer's intromissions therewith, apart from his intromissions with their father's executry estate, and the pursuer is not entitled to his discharge until he has made payment to them of the balance ascertained to be due on such account.”
The Sheriff-Substitute ( Hope) on 12th February 1889 pronounced the following interlocutor:—“Finds that in accounting for his intromissions with the estate under his charge as curator bonis for the respondents, the petitioner is not entitled to take into account his intromissions with the estate under his charge as factor loco tutoris under the appointment made by the Sheriff of Inverness-shire: Therefore sustains the second plea-in-law for the respondents, and decerns; and appoints the petitioner to lodge an account, framed with reference to the above finding, of his intromissions with the curatory funds within ten days; and allows the respondents to lodge objections thereto, if they any have, within ten days thereafter.”
The petitioner appealed to the Court of Session, and argued—That throughout all his actings he had acted in good faith, and for the best interests of the respondents. His actings in the matter of carrying on the farm must be looked at as at June 1880, when he had to decide whether the farm was to be carried on or the lease abandoned, and not as at 1882, when the respondents unexpectedly succeeded to their maternal grand-uncle's bequest. As there were thirteen years of a lease to run if the farm had been abandoned, damages to the extent of £1300 would have been incurred to the landlord. He could not anticipate the depression of farming interests which succeeded his appointment. The two estates were included in the inventory and accounts with the knowledge and authority of the Accountant of Court.”
Counsel for the respondents were not called upon.
At advising—
Mr Matheson, the appellant, was appointed to act as curator bonis to the three pupil children of his deceased brother, who was a farmer in Inverness-shire. The object of his appointment was that he should take charge of a legacy which had come to these three children in their own right, and which was the only property belonging to them in their own right. Their father was, as I have said, a farmer in Inverness-shire, and his personal estate consisted only of the stocking of his farm. Mr Matheson, the same gentleman as was appointed curator bonis to the three pupil children, applied to the Commissary of Inverness-shire to be decerned executor-dative for the purpose of taking up the personal estate of his deceased brother, and after being confirmed as executor he entered into possession of that estate, and went on to take possession of the farm as the executor of his deceased brother, and in
Page: 554↓
Prima facie, the pupil children are in no way liable for these proceedings. If the appellant had been in a position as executor to pay over a free balance to himself as curator bonis, he might as curator bonis very properly have received that free balance, because it would certainly have belonged to his wards. But there being no such balance, there is no connection between the estate in Inverness-shire, which he holds as executor, and the estate in Dumfriesshire, which he holds as curator bonis. Therefore I quite concur in the result arrived at the by the Sheriff and Sheriff-Substitute, that Mr Matheson must not be allowed to mix up the two things when he comes here to obtain his discharge as curator bonis.
The interlocutor of the Sheriff-Substitute of 12th February, as I propose to alter it, will stand thus:—“Finds that, in accounting for his intromissions with the estate under his charge as curator bonis for the respondents, the petitioner is not entitled to take into account his intromissions with the estate under his charge as executor-dative qua factor under the appointment made by the Sheriff of Inverness-shire and confirmation following thereon: Therefore sustains the second plea-in-law for the respondents, and decerns; and appoints the petitioner to lodge an account, framed with reference to the above finding, of his intromissions with the curatory funds within ten days; and allows the respondents to lodge objections thereto, if they any have, within ten days thereafter.”
Now, the second plea-in-law for the respondents is in these terms:—“The estate coming to the defenders in their own right not being liable to their father's debts, the defenders are entitled to an account of the pursuer's intromissions therewith, apart from his intromissions with their father's executory estate, and the pursuer is not entitled to his discharge until he has made payment to them of the balance ascertained to be due on such account.” I think that is quite a sound plea, and it has been given effect to by the Sheriff-Substitute. The result is therefore that Mr Matheson must lodge a statement of his accounts as curator bonis, and if he attempts to bring into that account any losses he may have sustained as executor, that will no doubt be objected to.
It has been argued that the children were not really injured by giving up their legacy if against that large obligations had to be set. But if an executor takes upon himself to act for young children, he cannot be allowed to throw on them the loss he may incur. Suppose, as I have said, that the executor is a different person from the curator, and he comes to the curator bonis and demands half the children's legacy for losses incurred in carrying on the farm, it would be the duty of the curator bonis to pupil children to say, “Pay the loss yourself.” That being my view if the executor and curator are different persons, I cannot see that it makes any difference if they are the same person. If as executor that person, it may be from motives of kindness, chooses to do certain acts, still it is as curator bonis that he must give account for his actions here, and he is not entitled to mix up therewith proceedings undertaken by him in his capacity of executor.
The Court pronounced the following interlocutor:—
“… Vary the said interlocutor [of Feb. 12, 1889] by deleting the words ‘factor loco tutoris’… and substituting therefor the words ‘executor-dative qua factor,’ and also by inserting after the word ‘Inverness-shire’ the words ‘and confirmation following thereon: Quoad ultra adhere to the said interlocutor; … quoad ultra refuse the appeal.”
Counsel for the Petitioner— Shaw— Walton. Agent— Thomas White, S.S.C.
Counsel for the Respondents— Law— Dudley Stuart. Agent— R. C. Gray, S.S.C.
