Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by TUTORS and CURATORS. Subject_3 PRO-TUTOR.
Vallange v. Kincaid and Forrester
Date: 17 July 1630 Case No. No 49.
The Lords found a protutor liable in the annualrents of money uplifted by him, as a tutor would have been.
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The deceased Vallange, in his testament leaving Kincaid his wife his executrix, and also tutrix, with other two friends, to his bairns; which testament being confirmed by her, and she remaining intromissatrix with his goods, thereafter she marries Doctor Forrester for her second husband, and she and he continue in intromission diverse years after this second marriage; thereafter, the other two tutors testamentars, who before accepted not the office, pursue the relict as tutrix, and her said second husband, who also had given his bond to be accountable for the minor's goods, hisce nominibus, viz. as pro-tutrix, and as intromitters, and in respect of the said bond, to make count, reckoning, and payment to them, as now accepting the office of tutory, of the saids goods and whole profits, since the time of their inromission, unto the time of the payment of the principal sums: Wherein the husband and his wife compearing, alleging, That they cannot pay any annualrent since the time of their second marriage, because then she lost her office, and so ought not to be considered as a tutrix to pay profits, but as any other stranger, and who being so respected, could not be subject in annualrent; but these two tutors were only in law answerable to the minors for annualrent; so that their own omission till now to accept the office of tutory, and to do the duties thereof, that omission ought to be burdenable to themselves, and not to the relict, who was not tutrix since her said marriage.——The Lords notwithstanding found, That albeit where there are tutors, a pro-tutor is not ordinarily obliged and bound in annualrent for the minor's goods, yet that here, she continuing in the same intromission, which she had when she was tutrix, and having confirmed the testament, that she was subject and her husband in paying of annualrent, for the sums and goods intromitted with by her; seeing the goods remained in her and her husband's possession, and they had not exonered themselves by any contrary action of tutory, or other action whereby she might have been freed of her intromission.
Act. Robertson.Alt. Mowat & Gibson.Clerk, Gibson.
Fol. Dic. v. 1. p. 40. Durie, p. 531.*** Spottiswood mentions the same case thus:
July 21. A man having left his wife tutrix to his children, with others of his friends; if she only have intromission during her widowhood, and continue the same after she is married to another husband, although she lose her tutory by her marriage; yet she will be liable to the children for payment of the annualrent of the sum and duties uplifted by her, as well as if she had continued to be tutrix.
Spottiswood, (Tutors and Curators.) p. 347.
*** See the same case from Auchinleck, No 23. p. 490.
