Captain George Ramsay v. Lord Dalhousie and Tutors
Date: 28 July 1688 Case No. No. 231.
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Mr. John Ramsay, third brother to my Lord Dalhousie, having, in absence of his second brother, served himself tutor of law to my Lord's children, upon the tutors testamentary lying off and neglected to accept, for whom Sir John Ramsay, one of the tutors testamentary, became cautioner, and was by him appointed factor, and acted as such several years;
The testator's second brother, after his return from abroad, took out brieves to serve himself tutor of law; of which service a bill of advocation was presented, upon these reasons; 1st, There is already a tutor of law served and retoured, whose service ought first to be reduced; 2do, A quorum of the tutors testamentary had accepted, which excludes any tutor of law.
Answered: The first service of tutory was null ex evidentia rei, it being notour that John was but the third brother; 2do, The tutors testamentary had lain off for several years, and suffered a tutor of law to serve; and Sir John Ramsay, one of the testamentaries accepting, had renounced the office, by becoming cautioner for the pretended tutor of law.
The Lords repelled the first reasons of advocation, but sustained the second; and found, that the tutors testamentary accepting before the brieves of tutor of law were served, though not within a year of the defunct's death, when they might have accepted, did exclude the service, and that Sir John might yet accept as tutor testamentary.
