Scottish Court of Session Decisions

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

Tait
v.
Walker

Date: 22 December 1676

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The children of a second marriage, having pursued the son of the first, for implement of their mother's contract of marriage, and the provisions therein contained in their favours:—

It was alleged, That they were debtors themselves, in so far as they were executors named and confirmed to their father:

And it being replied, That the testament was given up by the mother, they being infants for the time, and she was not their tutrix, and so could not bind them:—

The Lords found, That there was difficulty in the case; in respect the pursuers were now past 40 years, and they had never questioned or desired to be reponed against the said confirmation. And, on the other part, it was hard that a deed of their mother, having no authority to do the same as tutor or curator, should bind them: and there was no necessity to be reponed against the same, it not being their deed, and being ipso jure void: and therefore, before answer, the Lords thought fit to try if the pursuers had meddled with any part of the executry, or had done any deed that could import homologation of the said testament.

Newbyth, Reporter.

Page 201.