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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crum Ewing's Trustees v. Bayly's Trustees and Others [1910] ScotLR 876 (20 July 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0876.html Cite as: [1910] ScotLR 876, [1910] SLR 876 |
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Page: 876↓
(Single Bills.)
(Reported ante, January 28, 1910, p. 423.)
In a Special Case submitted to the Court to determine certain questions arising under a trust disposition and settlement certain interests of parents and children were opposed. The judgment of the Court having been by a majority in favour of the parents, the curator ad litem to the minor children presented a note in which he craved an order on the trustees ordaining them to make payment to him of a sufficient sum to enable him to appeal to the House of Lords. The Court, after consultation with the Judges of the Second Division, and in view of the fact that there was a dissent from the judgment to be appealed against, granted the crave.
James C. Pitman, Esq., advocate, curator ad litem to Mildred Jean Douglas and others, grandchildren of Mrs Jane Coventry Ewing Crum or Bayly in the Special Case ( Crum Ewing's Trustees v. Bayly's Trustees and Others, 47 S.L.R. 423) submitted for the opinion and judgment of the Court on certain questions arising out of her trust-disposition and settlement, presented a note to the Lord President.
The note stated that at the advising of the Special Case on 28th January 1910 “the questions in the case were answered in a sense contrary to the contentions of the wards represented by the curator ad litem, Lord Johnston dissenting in favour of the contentions of the curator's wards on question 5 ( a). The curator ad litem has been advised by counsel that the answer of the majority of your Lordship's
Page: 877↓
Court to the said question 5 ( a) is not well founded in law, and that it is his duty to do all he can to prosecute an appeal to the House of Lords. The other parties to the case are averse from any appeal being taken, and desire that the judgment already pronounced should be accepted as final. One of the curator's wards Miss Isobel Jane Denroche Smith has come of age since the judgment was pronounced and concurs with the other parties in not desiring an appeal to be presented to the House of Lords. The curator ad litem has no funds wherewith to defray the expenses of an appeal to the House of Lords, and the trustees of the late Mr Crum Ewing, the first parties to the case, decline to furnish him with the necessary funds to do so. In these circumstances the curator ad litem conceives it to be his duty to bring the position of matters before your Lordship with a view to obtaining an order on Mr Crum Ewing's trustees to supply him with the necessary funds to appeal to the House of Lords, or such other directions as your Lordship may deem it right to give.” The curator ad litem craved the Lord President to move the Court “to pronounce an order ordaining the first parties to the case to make payment to the curator ad litem of the sum of £500, or such other sum as your Lordship may think proper, to enable him to present and prosecute an appeal to the House of Lords on behalf of his wards against the said judgment of your Lordship's Court to the extent above indicated, or otherwise to give such directions for the guidance of the curator ad litem in the matter as your Lordship may deem fit.” On the note being called in Single Bills counsel for the curator ad litem argued—It was recognised that where there was a proper question to try arising out of a trust-deed the expense of an appeal to the ultimate Court was a proper charge on the trust estate. Where the difficulty was really created by the testator, the expenses should come out of his trust funds. If it were not competent in such circumstances for a curator ad litem to be put in a position to go to the House of Lords it would always be for the advantage of the major beneficiaries to get such questions decided in a special case during the minority of those having opposite interests. It was true that there was no precedent for this application, but the Court had intervened in the converse case. In Studd v. Cook, May 8, 1883, 10 R. (H.L.) 53, 20 S.L.R. 566, where a father appealed to the House of Lords against a judgment in favour of the curator ad litem to his pupil children, the House stayed proceedings until the father put the curator in funds to defend the appeal.
Argued for Crum Ewing's trustees and the Rev. Paget Lambart Bayly (the third party in the special case)—There was no precedent for the granting of the crave of this application. The curator ad litem had stated a case rather for his own protection than in the interest of the wards. The trust funds had been already allotted under the Special Case, and when the curator ad litem was made in his official capacity a party to the contract of the Case he ought to be bound by the decision of the Court. While it might be said he had a right to appeal, it could not be said he had a duty to appeal. The difficulty did not arise on the trust-deed which these trustees had to carry out but on that of Bayly's trustees.
Argued for the successful parties (the parents of the children)—In the special circumstances of this case the practical benefit to the children if the judgment of the Court of Session were overturned on appeal would be very small, if indeed there would be any. The children would in ordinary course succeed eventually, through their parents, to the funds in question. It was therefore not a case for granting the unprecedented crave of this application, and no encouragement should be given to further litigation.
At advising, the judgment of the Court (the
Now, had there been no dissent I think we could not have listened to this motion. It is not to be understood that curators ad litem are to take appeals to the House of Lords against unanimous judgments of this Court. But where there is a dissent the situation is different; and when an opinion is given by counsel, as is the case here, which favours the view taken by the dissentient judge, one must recognise that it is quite likely that the House of Lords may take his view also.
Another matter which seems to me to be of importance is that the minor children in this case are put in the position in which they find themselves through no action of their own but through the action of their parents. Had there been no such process as a Special Case, the parents, if they had raised the question by ordinary action, in which the minor children were called as defenders and did not appear to defend, could only have got a decree in absence. The fact that there was such a
Page: 878↓
So far I have had no difficulty. The only difficulty I have had has been one of form. It is a mere accident that we have anything before us on which to write. Had decree been extracted we should not have had anything, but as it is, the process being still before us, I think it is within our power to pronounce an order upon the trustees. I propose that the order should be framed rather thus—to order the trustees to advance a sum of money to the curator. What I mean is that we wish to leave it to the House of Lords, after they have heard the case, to decide whether the expenses should come out of the general fund or out of a portion of the fund, and, if out of a portion, which portion? That is a question which may be affected by the ultimate decision of the case, and which ought not to be concluded by any order of this Court.
The Court pronounced this interlocutor—
“Ordain the first parties to the case to make payment to the curator ad litem of the sum of £300 to enable him to present and prosecute an appeal to the House of Lords on behalf of his wards against the judgment of this Court, the beneficial interest against which the said sum may be ultimately charged being subject to the direction of the House of Lords under appeal.”
Counsel for the Curator ad litem— Macmillan. Agents— Webster, Will, & Company, S.S.C.
Counsel for the Trustees and the Rev. Paget Lambert Bayly— Moncrieff. Agents— Fraser, Stodart, & Ballingall, W.S.
Counsel for the Successful Parties — Leadbetter. Agents— W. & J. Cook, W.S.
