Minor's privileges. - Oath. - Process at a minor's instance to sell land for payment of his debt. - Privilegiatus contra privilegiatum. - How far liable for goods and money furnished to him. - And for money borrowed by his tutor. - May chuse the place of his residence. - Entitled to examine the state of his affairs. - Can a minor pupil contract marriage? - Can a minor be a tutor? - An arbiter? - or a Commissioner of Supply?
Isabel Duncanson, and her Assignee, v. James Duncanson
Date: 28 June 1715 Case No. No 37.
A woman, minor, enter, ed into co-partnership, and her tutors paid part of her money to the company, and expended the rest on her maintenance. The money had borne no interest. Found that her money might be employed in the joint trade, but could not be diminished by her aliment.
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Robert Duncanson of Garshake, by his latter will, provides the said Isabel his daughter, (a minor) in 500 merks, payable by her eldest brother, the said James Duncanson, out of the readiest moveables, at her marriage or majority, but bearing no annualrent; and in the same testament, there is subjoined a nomination of tutors and curators to his children, of whom three to be a quorum, and the eldest brother sine quo non, with power to them to intromit with his rents, &c. for the children's education. Isabel coming to be in confinio majoris ætatis, enters into a co-partnery with another woman, who was a shopkeeper; and in regard she was to furnish the half of the shop with wares, her said brother paid out for her L. 22 Sterling for goods, and bestowed the remaining balance of the 500 merks for her board, cloathing, &c. and took a discharge of the tocher from her, being authorised by her other curators, who, as taking burden for her, do subscribe the same with her.
Of this discharge, she and Thomas Hall, her assignee, raised a reduction ex capite minorennitatis et læsionis, and it was alleged for them, as to the L. 22 Sterling, That the brother could not be in bona fide to pay the same, either to or for the minor, since he was expressly bound up by the words of the testament, whereby the tocher was only payable at majority or marriage. Nor, 2do, Did the consent of the other curators validate the discharge, since himself was sine quo non; nor could he be auctor in rem suam, and consent to a discharge granted to himself.
Answered for the defender, 1mo, That as the stock bore no annualrent, so although it had, so small a sum could never be a fund for the minor's maintenance; and therefore his bestowing part of the stock for putting her in a way of living, was certainly both prudence and piety, and is nothing that is novum, but a course very commonly taken by parents with their own children; specially that the goods purchased were not absolutely intrusted to herself, but another who was habit and repute to be of integrity and skill in the trade, joined with her. 2do, Since he could not be auctor in rem suam, the authority of the other curators in this case was undoubtedly sufficient; it being universally received, that when any affair occurs betwixt a minor and one of his curators, the authority of the others is sufficient, since otherwise affairs of this kind could never be extricated.
The pursuer having also insisted for reducing the discharge as to the ballance paid out for board, cloathing, &c.; it was answered for the defender, That since the stock bore no annualrent, it behoved to be diminished for entertaining the minor; for although the defunct, in his will, appoints the rents of his estate for years to come to aliment his children, yet these are not the subject of a testamentary disposition.
Replied for the pursuer, That by the current of decisions, it has been determined, that the heir is bound to maintain his brethren and sisters, in case of their having no fund of their own for their aliment; as 29th January 1663, Children of Netherly contra the Heir, No 50. p. 415.; 11th February 1663, Frazer contra Frazer, No 51. p. 415., nor is there any thing more conform to nature and humanity. So that the pursuer needed not make any other use of the destination in the testament than to shew the defunct's enixa voluntas, that the children's portions should be paid to them entire at the terms he had appointed.
The Lords found, That the curators might employ the minor's stock in joining with a person held and repute of knowledge and reputation in trade; but found, that the stock could not be diminished for the aliment.
Act. Hall & Colvil.Alt. Smollet & Bruce.Clerk, Roberton.
Bruce, v. 1. No 110. p. 136.
