Effect of failure of the end in view in granting a deed.
Thomson and Halyburton v. Ogilvie and Watson
Date: 16 June 1675 Case No. No 26.
Found in conformity to the above.
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David Thomson having by his testament nominated his wife executrix and tutrix; and having left a legacy to his son of L. 5000, and ordained his relict to employ the same upon annualrent, in so far as he ordained him to be educated upon the annualrent of the same; in a pursuit for the said legacy, and the annualrent of the same, it was alleged, that the executrix could not be liable for annualrent: And it being replied, that she was also tutrix, and tutors are liable after the first term that they embrace the office, for annualrent of the pupil's means; and that having confirmed the testament, by the nomination foresaid of her to be tutrix, she hath accepted the office of tutory; and the point at interlocutor being, whether by confirming of the testament, she had accepted of the office of tutory; some of the Lords, viz.
Were of the opinion, that by confirming of the testament, she did not accept of the office: But it was found by the Lords, that having confirmed without protestation that she did not accept of the office, eo ipso she did accept of the same: And though she had emitted such a protestation, it could not be allowed, seeing she was not only named executrix, but had a legacy left her; and she could not accept the office of executry and legacy foresaid, and repudiate the office of tutory of her own child.
The Lords (in the case foresaid) thought, that if the relict were able to make appear, that having used all possible diligence, she had not recovered payment of the defunct's means, she could not be liable for annualrent, but from the time that she recovered the same.
Reporter Castlehill.Clerk, Monro.
Fol. Dic. v. 1. p. 425. Dirleton, No 266. p. 128.*** Gosford reports the same case:
In a pursuit at Cecil Thomson's instance, against Grizel Ogilvie, for payment of four thousand pounds, with the annualrent thereof upon that ground, that the said Grizel, her mother, was not only left executor by David Thomson the pursuer's father, but likewise nominated tutrix to her and the rest of the children during her widowhood, and having confirmed the said testament as executor, and intromitted with the whole inventory, or else being obliged to intromit as tutor, she ought to be liable for the foresaid sum, which was the pursuer's portion, with annualrent after year and day, after which she ought to have done diligence. It was alleged for the defender, that she could only be liable as executrix to count and reckon, and to instruct diligence, but no ways as tutrix, seeing she never acted as tutrix, and a naked confirmation of the testament wherein she was executrix, could not oblige her to be liable as tutrix. The Lords did find that the defender having confirmed the testament wherein she was nominated tutrix Without any protestation, that she should be free of the office of tutory, and should be accountable only as executrix to the creditors, that in law she was liable as tutrix, and she not having declared her mind, that there might have been a tutor dative, or a tutor of law served, she ought to compt for the said portion, with the annualrent of what she had intromitted with.
