Sir Patrick Aikenhead's Children of the First and Second Marriage
Date: 14 November 1711 Case No. No. 254.
What are the powers of tutors to transact?
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In the action betwixt Sir, Patrick Aikenhead's children of the first and second marriage, mentioned 26th June 1711, another point fell to be debated; that the friends and tutors finding that there was not a sufficient estate to fulfil the canditions of both contracts, they entered into a contract of communication, by which they were to bear a proportional loss; the benefit whereof the bairns of the second marriage claimed, that their eldest brother might be restricted thereto, and not get his full provision made up. Objected, that tutors cannot bind their pupils by transactions upon their means, especially where he was so well founded as to be a preferable creditor, his mother's contract being prior tempore and so potior jure; and it were of very dangerous consequence to allow tutors to transact clear rights; for that is no ordinary deed of administration, but a downright alienation; and therefore being to his manifest lesion, he craves to be reponed ex capite minorennitatis et læsionis; and it is evident the friends' main design by that contract was to preserve and ingather the father's estate, that the subject of their payment might not perish, nor be consumed and dilapidated by their entering info pleas. Answered, it is very true, there be cases in which minors are restored against their tutors transactions, as appears ex L. L. 22, 25, 36, 41 C. De transact. Yet it must be also yielded on the other side, that tutors may warrantably transact, where the point is in apicibus juris, and lis valde dubia et anceps, as this certainly was. For where could there be a more proper subject for a transaction than to remove a doubtful plea amongst brethren, and done not only in præsentia, but cum unanimi consensu amicorum? And that by law, a man notwithstanding his obligements in a first contract, may enter into a second marriage and provide a wife and children, so they be not irrational and exhorbitant; and which might be a probable motive to induce the tutors to the bairns of the first marrirge to enter into that contract of communication: And both by the common law and ours, tutors and curators have a power in such dubious cases to transact their pupil's claims, where the point is dubious, and the expense of prosecuting it may be as heavy and prejudicial to the pupil, as the abatement given by the transaction, which is always in re controversa. Hence Vinnius De Transactionibus, Cap 3. tells us, Tutores vel curatores de re pupillorum vel adolescentium recte transigunt si jus illorum fit valde obscurum vel dubium. And Ulricus Huberus on that title says to the same purpose, Tutoris atque curatores de rebus pupillaribus transigere possunt si causa sit valde anceps et ambigua: And Boekelman concurs in the same opinion, And with us in January 1691, there was a famous decision, Fletcher of Aberlady against his brother's tutors, where the Lords sustained a transaction made by them, with a lady, liferenting a part of their pupil's estate, whereby they transacted her liferent at five years purchase, though she had then a cancer in her breast unknown to them, and died within a few months after the bargain. See Stair, Tit. Tutors. The Lords on the one hand thought tutors might in some extraordinary cases transact; and on the other it might be of very dangerous consequence to pupils, if all the bargains their tutors made should be sustained. The difficulty is, to steer betwixt this Scylla and Charybdis, and find out either a medium participationis or negationis; and at present they fell upon this medium, that if it was but a modica læsia, they would not ranverse nor rescind this transaction; but only where enorm lesion appeared; and remitted to the Ordinary in the cause to hear them condscended on the extent of their lesion.
There was another point started, if the second contract of marriage be reduced quoad excessum, a quo tempore does it take effect, whether ab initio or only from the date of the interlocutor? for the younger children of the second bed contended they were bona fide possessors preceding the interlocutor. The other bairns alleged no bona fides; for you could not be ignorant, but I had the preferable right, and if you affect ignorance of it, that cannot excuse; for ignorantia juris neminem excusat: See 20th November 1662, Children of Wolmet, No. 12. p. 1730. But the Lords had no occasion to decide this point here. See No. 94. p. 977.
