Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

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Date: 21 December 1675

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A father, having made a disposition in favours of his son, reserving his own liferent, with power likeways to dispose of what he had provided, did appoint certain persons as curators, and to have administration of what he had provided, during not only the pupillarity, but the minority of his son: and nevertheless his son, having chosen curators after his pupillarity, there was a competition betwixt the said curators, and the person appointed by the father to administrate.

The Lords found, That the son, as to his person, was not in potestate of either of the said competing curators; seeing curator non datur personæ sed rebus. And, as to any other estate belonging to the minor, any other way than by the provision of his father, the same was to be governed by the advice of the curator, named and chosen by himself.

But the Lords demurred as to that question,—viz. Whether the father might affect the right granted by himself, with the quality and provision foresaid, that the person named by him, should have administration of the estate disponed by him. And some were of the opinion, that there is a difference betwixt a stranger and a father; in respect strangers are not obliged to give; and what they are pleased to give, they may affect and qualify their right thereof, sub modo, and with what provisions they think fit: whereas a father has a duty lying upon him in nature, to provide his children; and, by the law, he may name tutors to his children; but, after pupillarity, he cannot put them under the power of curators without their own consent: and, if this practice should be allowed, there should hereafter be no election of curators. They did also consider, that the right granted by the father was in effect donatio mortis causa; seeing the father retained possession, and a power to revoke. And it seemed, that as the father could not in testament make curators, so he could not do the same by a legacy, or any such donation mortis causa.

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