Click here to view a pdf copy of this documet : PDF Copy
Beatson of Cardon, having in his testament nominated Robert Beatson and others tutors to his bairns of the second marriage, the said Robert did transact the defunct's debts, and apprised his estate; but, by a back-bond declared, “That the children should have the benefit of the compositions, providing, that if they died without children, the benefit should be his own, they always ratifying at majority. David Beatson, heir of the second marriage, raises a reduction on these reasons; First, That the defender was his tutor nominate, and did accept, by opening the charter-chest, and taking out writs, by uplifting of the defunct's coal worth £.150 Sterling yearly, and of his land-rent, which acts are either sufficient to instruct accepting to be tutor, or acting as pro-tutor; and in either case all benefit the defender made of the transactions must accresce to the pursuer without limitation. The defender answered, That he could not be liable as tutor, because he was content to give his oath, that he knew not that he was nominate; neither as pro-tutor, because he had access to the charter-chest amongst many other friends of the defunct, and kept a key at their desire, and the defender's eldest brother another; and as for the intromission with the coal and rent, most of it was after the comprising; and as to what was before, he was then in his father's family, who had an infeftment of the land and coal ay and while he was satisfied of £.1000, by which, having begun his intromission, though he had continued the same for some time after that sum, he could not therefore be concluded as gerens pro tutore.
The Lords found it relevant to be proved, that the defender knew the nomination when he did the foresaid acts, to infer his acceptance of the tutory; but if it were not proved, they found the acts not relevant to infer gestionem pro tutore.
