A legacy being left to one whom the testator named tutor to his heir, it was held an implied condition he should accept the office.
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James Renny, portioner of St Ninians, disponed his whole estate heritable and moveable, to James Renny his nephew in liferent, and David the son of James in fee; burdened with his debts and donations, particularly one of 1000 merks Scots to Andrew Lecky writer, payable with interest from a year and day after his death; excluding James Renny from the administration, which he provided should be in the hands and power of certain persons, amongst whom were the said Andrew Lecky, David Walker, and William Danskin, whom he named to be tutors to the said David Renny during his minority; declaring any three of them to be a quorum.
James Renny died in July 1728; and the tutors, except Andrew Lecky, having accepted of the office, named William Danskin their factor, without taking caution; and it was agreed the pupil's effects were embezzled; but Andrew Lecky alleged he had met with them the first day, inspected the writings, and appointed a time for a second meeting; before which they met without his privity, and appointed the factor; and that he often in a year thereafter complained of this conduct, offering to accept if he were removed, and a proper one appointed, and security taken. It appeared also, that, 12th July 1729, he took an instrument against them, complaining of their mal-administration, for which he could not accept the office; but declared he was still willing to accept, if the factor's accounts should be cleared, and a proper factor appointed, with sufficient security. To which it was answered by David Walker, that he recalled the factory, in so far as it was granted by him, and by the factor, that he was ready to account.
Andrew Lecky obtained decreet before the Sheriff for his legacy; which was suspended, and the suspension discussed at the instance of Robert Lecky his son, to whom the claim was assigned.
Pleaded for the suspender, By the Roman law, a legacy left to a tutor, cannot be claimed, if he excuse himself from the office, l. 28. §. 1. l. 32. & 33. D. De excusationibus tutorum; l. 5. § 2. D. De his quibus ut indignis; l. 25. C. De legatis. This rule is received in our law; Dirleton, word Tutors; Stair, Book 1. tit. 6. § 6. 2d February 1675, Scrymgeour against Wedderburn, No 25. p. 6357.; 16th June 1675, Thomson and Haliburton against Ogilvy and Watson, No 26. p. 6362. And this suspender's claim is most favourable, as he has suffered by the mismanagement of the other tutors; which it was Andrew Leckie's duty to have prevented.
Pleaded for the charger, By the civil law, the tutor did not forfeit his legacy, unless it appeared to have been left as an engagement to serve the office; but however he cannot be said to have ungratefully refused to accept, which is the ground of the forfeiture, where he had so good reason of abstaining, as the mismanagement of the other tutors; which was such that his acceptance could have been of no service to the pupil, as he would have been over-ruled in every thing, and would only have made himself liable for their mal-administration.
Replied, A good excuse for not accepting, will not entitle him to the legacy; since by the civil law, the only case where the question could occur was where there was an excuse, for otherwise a tutor could not decline; and the misbehaviour of the rest was an additional reason why Andrew Lecky ought to have accepted and removed them.
Duplied, He might have been ruined before he could have obtained a decreet of removal.
The Lords found, that in this case the charger's cedent had no right to the sum given him by the disponer.
Reporter, Elchies.Act. Lockhart.Alt. Haldane.Clerk, Gibson.
Fol. Dic. v. 3. p 300. D. Falconer, v. 2. No 19. p. 21.*** Kilkerran reports the same case:
One of six tutors, to whom a legacy of 6000 merks was left, not having accepted the office, was found not entitled to the legacy, and his answer repelled, that the other tutors had chosen one of their number factor, without taking a cautioner for him; and that he had offered to join with them, if they would call him to account, and establish a factor who would find caution. It appeared that this offer was made merely in the view to save his legacy, a short time before he raised his process; that, along with the offer, he had protested not to be prejudged in his legacy, and that he had not taken any measures to secure the pupil against the hazard he suggested, which he might have done by a process for having the other tutors removed as suspected.
