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The relict and children of Lieutenant Douglas against the Lord Carmichael and Sir William Lockhart. The Lords sustained the two accepting tutors, in respect the nomination bore a clause, that, failing of the rest, any one of them should have liberty to act, and that the word “failing” was not only by death after acceptation, but signified failing any way; and therefore found the letters orderly proceeded; but superseded extract for 15 days, that, in that space, they might exhibit the papers on oath; but would not let them be delivered up to the factors, but to lie in the Clerks' hands, till the tutors shall come home, so as the factors might have inspection of them, in order to prepare and form the inventories, conform to the act of Parliament 1672. Some proposed to have them sealed up till the tutors returned and discharged; but seeing these differences were also nominated in the testament, and did not accept, the Lords thought there were more humour than reason in their keeping up the papers.
1693. November 23.—The action, Lieutenant-General Douglas' Lady and brother, as tutors to his children, against the Laird of Carmichael, and others, was again debated in presence. The Lady reclaimed against the interlocutor burdening her with caution, seeing she was a testamentary tutor; and that Callander's case tota cælo differed, in regard that nomination bore not, if any of them failed, then the rest to administrate, as this did. Though the law is plain in exeeming such tutors from caution, yet L. 17. D. De tutel. testament, and the whole title De confirmando Tutore shew, that this rule wants not exceptions, and that the Prætor may sometimes over-rule the scriptura testamenti. Some of the Lords thought, that she and her brother (though a soldier, who jure Romano were not to be tutors) could not be subjected to find caution; others were of opinion, that, in her circumstances, it was both just and safest to require caution; but the plurality were for liberating her, unless they could condescend upon some ground of malversation to render her suspected; which the friends offered to do.
1693. November 24.—The foresaid case was again heard; and the malversations condescended on, viz. that they had not made inventory of the sums lying in England. But it was made appear she had given up inventories there. The next was, that they had granted a factory to Robert Colvil to make inventories. The Lords found this no malversation. Then alleged, They had intromitted with sums of money before the inventory. The Lords would not receive what must abide probation hoc ordine by way of exception; but reserved their action for removing them as suspected; and decerned in the exhibition of writs to them, without burdening them with caution.
