Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Johnston
v.
Crawfurd and Others

1751, Feb. 19.
Case No. No. 21.

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The deceased Johnston of Straiton, by a deed in liege poustie, appointed certain persons tutors and curators to his children, three to be a quorum, but his wife sine qua non. The words were, “with power to them, or any two of them, with the said mother, to exerce the officer.” He thereafter on death-bed made another nomination of tutors and curators, leaving out one of the first named, and adding other four, and made three a quorum, without any mention of the sine qua non, and with power to those first named to accept either on the first or last nomination. After the pupillarity was expired, the widow wanting to get free of these tutors and curators, renounced the office of curatory, and the eldest son raised an edict for chusing curators, which was opposed by those named, and advocated to this Court. The minor alleged that the first nomination was fallen by his mother's renunciation, and that the nomination on death-bed could not bar him from chusing curators. Answered: The nomination of a sine qua non does not determine or void the nomination; 2dly, that a nomination being once made in liege poustie, the father might effectually vary or qualify that nomination on death-bed. This last we did not much regard; and upon answers to the defenders' petition, we repelled both, and adhered to Minto's interlocutor; though several said they were chiefly moved by other matters in the answers, that the defenders had not taken any concern in the minor's affairs while pupil; but I confess I made no doubt that the first nomination was fallen.