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When a father is in embarrassed circumstances, and not resident in Scotland, persons indebted to his children cannot safely make payment to him as their administrator-in-law, without security that it shall be applied for their behoof.
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Mr. Abernethy of Mayen granted a bond, obliging himself to pay to Mrs. Graham, his sister, an annuity of £.25, exclusive of her husband's jus mariti, and £.500 to her children, at the first legal term after her death.
Mr. Duff having purchased the estate of Mayen, under burden of this bond, he was, upon Mrs. Graham's death, charged by her husband to pay to him, as administrator-in-law for his children, the £. 500 above mentioned.
Mr. Graham did not reside in Scotland, and was much embarrassed in his circumstances.
Mr. Duff, in a suspension, contended, that he therefore was not in tuto to pay the money to Mr. Graham, without obtaining security that it should be properly applied.
The charger, on the other hand, maintained it as a settled point, that a father acting as tutor or curator for his children is not obliged to find security.
Upon advising minutes, it was
Observed on the Bench: The ordinary rule, that a father is not obliged to find security for his intromissions, does not apply to this case.
The Lords unanimously found, that the money could not be paid without security.
Lord Ordinary, Methven.For the Suspender, Ja. Gordon.Alt. Ja. Fergusson, jun.Clerk, Menzies.
Fac. Coll. No. 108. p. 239.
