Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Drummond of Rickarton v. Feuers of Bothkennel
Date: 17 January 1671 Case No. No. 87.
A tutory granted to two persons jointly, was found void by the death of either.
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Thomas Drummond of Rickarton pursues a poinding of the ground against the tenants of the lands of Bothkennel; wherein the feuers alleged, No process, because the pursuer, being pupil, he is not sufficiently authorized, the tutory produced being to his mother and uncle jointly, and his mother being the death of dead, his uncle is no more tutor, the tutory being granted to them, and bearing expressly to them jointly. It was answered, That, in tutories, curatories, executories, the death of one person doth not evacuate the office, but it accresces to the rest.
The Lords found, That, in respect of the tutory bearing to two conjunctim, the death of one evacuates the office; nevertheless, they declared that they would give a curator ad hanc litem, to authorize the pupil, but that none could uplift or discharge, till there were a new gift of tutory.
Fol. Dic. v. 2. p. 384. Stair, v. 1. p. 704.*** Gosford reports this case:
In a pursuit at Rickarton's instance against the feuers, for payment of an annual-rent, wherein he was infeft, and at her mother's instance, for her interest, as being tutrix-dative, it was alleged, That the mother could not authorize him, because, by the gift of tutory, his said mother and John Drummond are made tutors jointly, and the said John being dead, the tutory was void. It was replied, That, by the death of John, the whole office did accresce to the mother, as in tutories and acts of curatory, where some are appointed sine quibus non by the death of any of them, the full power and office do accresce to the surviving tutors or curators. The Lords did sustain the defence, notwithstanding of the reply; and found a difference betwixt this gift and a clause appointing tutors sine quibus non; because, in that case, the tutory or act of curatory are not void by the decease of one of these appointed to be sine quo non, whereas this gift, being granted as said is, is ipso jure null, and there is no necessity of a new gift; yet, lest the minor should sustain prejudice by this delay, they did authorize his advocate to be tutor ad hanc litem.
