A minor having curators, may test without their consent, and may nominate his own curarors to be his executors.
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Umquhile —— Allan having nominated William Stevenson his executor and universal legatar, he obtained decreet for a sum belonging to the defunct. Two Allans, the defunct's cousins-german, raise reduction of the testament and decreet upon this reason, That the nomination was by a minor, in favour of his own curator, who could not authorise him, and who was his step-father and master; and the minor having lain sick a fortnight, none of his relations were acquainted therewith; likeas he had also formerly nominated his nearest relations his executors and legatars, and therefore this testament had been unwarrantably elicited; likeas the defunct died a few hours after he signed the same; and albeit minors having curators might test without their consent, yet not in such circumstances as these; therefore most of the neighbouring nations have restricted the power of testing to 18 years of age; and if this be authorised, the portions of children, which are oft times wholly testable, may be carried away from their relations in favour of strangers, or any who happens to be about them the time of their death; and by the Roman law, heirs nominated were excluded, if it proceeded upon suggestion; and more must be presumed in this case, where the defunct had formerly preferred his friends.—It was answered, That none of all these grounds are relevant to reduce a testament, neither can any thing less than an act of Parliament restrict the power of testing after pupillarity; nor is there any reason for such a law in Scotland, where testing is so restricted by law, that it can reach no heritable rights, and that it can neither exclude the wife nor bairns' share; and though the Romans, who were zealous to have the power of testing to extend to the whole estate, excluded suggestion, and made many restrictions, yet our restrictions are more than them all; and if upon such pretences testaments could be reduced, then the nomination of wives, parents, children, and brothers, who all may have greater influence than a curator, would bring most of testaments in question, and lay foundations for infinite pleas, to the exhausting of the defunct's means.
The Lords found, That the defunct might test, though having curators, without their consent, and might nominate their curators; and repelled all reasons of reduction, seeing neither incapacity of mind, force, nor fraud were alleged; but, if importunity had been alleged, by urging the defunct by reiterated desires, threats, or sharp words, to any particular way of disposal, by which defuncts might not be in tranquility to die in peace, but might be obnoxious to such importunity, the Lords might have enquired into the matter of fact; but this was not insisted on by the pursuers.
