Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Harlaw
v.
Home

Date: 4 December 1672

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In the forementioned action betwixt Harlaw and Home, wherein the executor-creditor was only found liable to assign, and not to do diligence, there being a count and reckoning betwixt the curator and the pursuer;—it was alleged for the curator, That he ought to have allowance out of the first end of his intromission of the sum of £700, paid in tocher with Agnes Harlaw, who was one of the four children, and so had right to a fourth part of the whole moveable estate due to her and the rest.

It was replied, That the pursuer, Andrew Harlaw, pursuing as sole executor to Thomas Harlaw, upon two bonds granted by the curator to him proprio nomine, any payment of tocher to Agnes Harlaw cannot exoner him.

It was answered for the curator, That any bond granted by him to Thomas, being only for his intromission with money and goods, which belonged equally to four children, he could not be liable to Thomas but for his proportion thereof, if it should amount to the bonds which is the ground of the pursuit.

The Lords, having ordained the conjunct curator with Afleck to be examined upon the value of the estate; who deponed, That by the death of the father, there fell to the children above 7000 merks, so that Thomas's proportion did amount near to the whole sums contained in the bonds: Notwithstanding whereof, they did ordain, That Harlaw should prove the whole value of the defunct's estate, and that Thomas's proportion was no less than the sums contained in the bond. Which was hard; seeing that a curator intromitting, and being major, sciens et prudens, it cannot be presumed that he would have granted a bond to any of the children, unless he had been their debtor in so much; and that, after twenty years, to ordain children to prove the value of their own estate, against their own curator, who had acknowledged and given bond without any restriction or provision, it was not to be expected it was consisting in their knowledge.

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