Scottish Court of Session Decisions

This was a petition by a widow who was tutor nominate to her three pupil children for authority to sell a small house and garden in Inverness, the property of the children. The rental of the subjects was only £10 or &12. The petition also prayed the Court “to ordain the sum to be realised for the said property, after deducting expenses, to be reinvested the name of the petitioner, or in the name or names of such other person or persona as to your Lordships shall seem proper, on such conditions as your Lordships shall think necessary for securing the interests of the said pupils, and the heirs entitled to succeed to them in the event of their dying in pupillarity.”

The petitioner averred that the house required to be rebuilt, or to undergo a thorough repair, which would cost, to make it tenantable, £60. She farther averred—“The said pupils are quite unable to repair the said house without borrowing money upon the security of the same. They have no income whatever except from the rents of the said house and garden; and as the petitioner, their mother, is in poor circumstances small toy shop, and being only enabled by strict economy to support herself and the said pupils, it will be most unfortunate if they are compelled to the borrow the money required for and to pay the. interest thereof, for which there is no prospect of adequate return.”

The petitioner averred that the house required to be rebuilt, or to undergo a thorough repair, which would cost, to make it tenantable, £60. She farther averred—“The said pupils are quite unable to repair the said house without borrowing money upon the security of the same. They have no income whatever except from the rents of the said house and garden; and as the petitioner, their mother, is in poor circumstances small toy shop, and being only enabled by strict economy to support herself and the said pupils, it will be most unfortunate if they are compelled to the borrow the money required for and to pay the. interest thereof, for which there is no prospect of adequate return.”

Birnie, for the petitioner, argued—The power craved is usually granted to tutors-nominate only when it is necessary to pay debts. This was the case in Bellamy, 17 D. 115; Mackenzie, 17 D. 314; and Sawers, 12 D. 905. But it has also been granted, when the exigency is of a different kind, as in Earl of Buchan and Others, 16. S., 238. In order to remove any difficulty arising from the fact that a tutor-nominate finds no caution, the petitioner here proposes that the price of the subjects when realised should be handed over to a curator bonis to be named by the Court, who will of course find caution. This is the course which was followed in the case of Sawers, 12 D. 905. The following cases were also referred to:—Finlayson 22d Dec. 1810, F. C.; White, 17 D. 599; Auld, 18 D. 487; and Mathieson, 19 D. 917.

The petition had been intimated in common form and served on the persons who would succeed to the property in the event of the pupils dying in pupillarity; but no one appeared to oppose.

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After deliberation,