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Kerbechill, brother to Kerbechill, being lately deceased, pursued for exhibition and deliverance of the pupil, his brother's son. Compeared the mother, and alleged, She was tutrix testamentaria, and ought to have the bairn in her custody. It was answered, inierat secundas nuptias. She answered, That, in her constitution of tutrix testamentar, it was expressly provided, that, albeit she should happen to marry again, et sic provisto hominis abstulit provisionem legis. It was answered, That, upon the contrary, the provision of the law, that was founded and made for the weil and preservation of pupils and their gear, might not be taken away by any special provision of man, as appeared by the express law, and Doctors who write thereupon; Cod. Quando mulier tutelæ officio fungi potest; L. 2. et L. ult. ibid. Found by the Lords, that, notwithstanding of the said provision, the common law ought to be followed forth, and that her tutory testamentary (fell) per secundas nuptias.
