[1736] Mor 16340
Subject_1 TUTOR - CURATOR - PUPIL.
Date: Margaret M'Ilvain and her Husband
v.
John M'Quhirter
30 July 1736
Case No.No. 265.
A tutor-testamentary preferred to a mother, as to the custody of her own child, to which she was entitled by her husband's will, in respect of her second marriage, though the tutor was next in succession.
Click here to view a pdf copy of this documet : PDF Copy
Peter M'Quhirter, tenant in Craigfad, by his last will, appointed the said John, his brother, to be sole tutor to Janet M'Quhirter, his only daughter; and therein provided, “That his spouse should educate and entertain the child in every thing, according to her quality and station, till she be of the age of twelve; for which he ordained his brother to pay to the child's mother the yearly interest of her free stock.”
After Peter's death, Margaret M'Ilvain, his relict, married a second husband; whereupon the tutor required her to deliver up the child to him, under protestation, That she should have no title to any further sum in name of aliment. However, she refused to comply; and thereafter insisted in a process against the tutor for payment of the aliment, which was about £.26 Scots yearly, that being the yearly interest of the free stock.
For the tutor it was pleaded: That as the mother had married a second husband, neither she nor her father, to whose house she had sent her daughter, were proper persons to have the custody of the child's education; in support of which the following cases were quoted; 22d February, 1631, Finny, No. 116. p. 16255.; February, 1632, Gordon, No. 121. p. 16259.; February, 1675, Fullarton, No. 184. p. 16291. And, rather than allow her to be taken out of the hands of her father's friends, he or his father offered to aliment her gratis.
Answered for the mother: The governing rule in this case ought to be the father's intention, who, by the testament, has preferred her as to the custody
of her daughter to the tutor. And although that cannot be observed in the precise terms of the will, since her second marriage, yet the next to that ought to be followed, scil. the allowing the infant to be educated with the pursuer's father. 2dly, As the tutor is next in succession to the child, the law presumes that he will not take sufficient care of preserving her life; and as his father is in the line of succession next to him, so some suspicion lies likewise against him; therefore, neither of them ought to be considered as fit persons for that purpose. And, from the decisions referred to, it appears, that even when a mother offered to aliment her child gratis, no regard was paid to it; so that the tutor's making such an offer cannot have any influence; especially considering, that whoever does it must be a loser, as the fund of aliment is so small.
The Lords ordained the child to be delivered up to the tutor, and found no aliment due for the future.
The electronic version of the text was provided by the Scottish Council of Law Reporting