A tutor testamentary may be required, by the future curators, to deliver the writs.
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The deceased George Harper, having in his testament left his means to George and John Harpers, his oyes, and therein appointing James Hamilton, to be their tutors, and the rest of their means left by him to be paid to James Hamilton, for their entertainment, ay and while they should be of perfect age; after the bairns past tutory, they having chosen curators, the curators pursued the said James Hamilton the tutor, to deliver the bairns' writs, that they might have the administration of their means; and the said tutor alleging, that the writs should remain with him, seeing he had only right to intromit with the annual-rent of the monies left by the goodsir, for the bairns' maintenance, according to the goodsir's will, the Lords found, that notwithstanding, that by the testament, the goodsir had appointed the said James Hamilton to be tutor, yet that after the tutory, the bairns might choose others, to be curators to them, than the said James; and that the said curators had good right to call the said tutor, for delivery to them of the writs, containing the means left to them by the goodsir, and that they ought to administrate the same; but found that in respect the goodsir had left him to be tutor to his oyes, and gave him the rent of the money for their entertainment, while their perfect age, which the Lords found the goodsir might do of law in these things, which were left by himself to them, that therefore the rent of these monies, so left by the goodsir, should be paid to the said James Hamilton, even albeit the bairns were past tutory, so long as they were minors, at least so long as they remained with him in his company; but the Lords modified the sum, which should be paid to him for the bairns' entertainment, to a reasonable sum, and would not allow, that the annualrent of the whole sums should be paid to that end, but apart, (which they modified) and the rest to be forth-coming to the bairns.
Act. Gibson.Alt. Heriot.Clerk, Gibson.
Durie, p. 668.
