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(1715) Robertson 134
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 33.
Subject_Tutor and Pupil. —
Acceptance of the office of tutory found not proved by tutorial inventories, which were not judicially signed, and wanted writer's name and witnesses, unless posterior acts of administration were instructed; nor by a missive letter not holograph, and without solemnities, consenting to lend the pupil's money.
Certain acts of administration not sufficient to infer the acceptance of the office.
An affirmance with 30 l. costs.
James Watson of Saughton, the appellant's father, by his last will and testament bearing date the 6th of March 1703, appointed the appellant his executor, and nominated Sir James Foulis, Sir Alexander Dalmahoy, Robert Watson of Muirhouse, the respondent's father, John Watson, the testator's brother, and William Watson, writer in Edinburgh, his cousin, to be tutors and curators to the appellant during his nonage, the said William Watson being always fine quo non; and he is also appointed by the testator to be manager and receiver of the whole estate, real and personal, that should belong to the appellant as heir or executor to the testator, with an allowance of 50 l. of yearly Salary, besides his charges; and he is ordained to make up his accounts yearly, at least once in two years, at the fight of the other tutors, John Watson, the testator's brother, being always one : The will further “declares, that none of the tutors and curators accepting the office, Shall be accountable or liable for any omission, but only for their actual intromissions.” A few days after executing this will the appellant's father died.
After his death, the Several persons appointed by him, caused an inventory of all his real and personal estate to be made; and on the 27th of August 1703, three duplicates of this inventory were subscribed by them, and by three other persons who were nearest of kin to the appellant. These duplicates were exhibited by a procurator, before the sheriff of Edinburgh, who, together with his clerk, signed the fame. None of these duplicates had the writer's name inferted in them, nor were there any subscribing witnesses to them. The respondent's father died before the appellant had attained the age of 14 years; and about a year afterwards William Watson, the tutor fine quo non, died also.
1696, c.
After the appellant arrived at 21 years of age, he brought an action before the Court of Session against his surviving tutors and curators, and against the respondent as heir to his father, concluding that they should conjunctly and Severally be decreed to be accountable in solidum to the appellant for the whole rents and profits of his lands, and all goods and effects received by them, contained in the aforesaid inventory; and he also insisted, that
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To prove the respondent's father's acceptance of the office, and intromissions with the appellant's estate, the latter produced one of the duplicates of the inventory before mentioned; and also two missive letters written upon one paper, directed to the said William Watson, wherein Sir James Foulis, one of the tutors, advises him that he was to pay Some money he owed the appellant, and gives it as his opinion that the same should be lent to Mr. Foulis of Ratho; the other from Sir Alexander Dalmahoy, giving also his opinion that the pupil's money could not be better Secured, to which last letter these words, “ Robert Watson consents,” are Subjoined.
The respondent answered, that though his father had been appointed tutor to the appellant, yet he had never taken upon him self the office, by concurring with the other tutors in any acts of administration, nor intromitted with the appellant's estate; that the Subscribing of the inventory (done out of friendship to the appellant, that he might know at his full age what estate his father had left) would not fix him in the acceptance of the office of tutor, because it was only a preparatory act required by the statute before entering upon the office, and the rule by which a tutor was accountable to his pupil when he intromits with the Subject of that inventory. That the act 1696. c. 8. did not provide, that where a nomination of tutors, with such qualities as in the present case is made, though on death-bed, that the nomination should subsist, and yet the qualities be void. That the appellant, therefore, could not Separate the qualities from the nomination, but ought either to hold the nomination void, and insist against the tutors as intromitters with his estate, in which case the respondent's father could not be affected; or if he held the nomination by the testator to be good, then the quality of being accountable only for intromissions would be a good defence for the respondent. For supposing the respondent's father had accepted of the office, (as he contended he never did) his acceptation being upon the faith of the quality expressed in the testator's will, he being at London when the nomination was made, could not know it was done on death-bed: Even supposing the nomination had been without any such quality, yet by the express directions in the will, William Watson was appointed Sole factor, and tutor fine quo non, and the testator's brother fine quo non to the making up of the factor's accounts, So that the other tutors testamentary could never be accountable for the administration of William the factor, since he was not nominated by them, nor had they power remove him.
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The appellant, in reply, contended that the tutors having accepted their office, and made inventories of the estate, they were certainly liable in solidum; for it imported not that William Watson was tutor sine quo non, and factor and manager by the testator's nomination, Since his intromissions as factor, in the construction of law, were the intromissions of the other tutors for whom he was factor, and Subjected them in the Same way and manner as if they themselves had intromitted. Nor did it alter the case that he was named factor by the testator, since he was still factor for the other tutors, and was ordained to account with them yearly, or at least once in two years; and it was their fault that he did not So account with them.
These matters in debate being reported to and considered by the Court, their Lordships, by three interlocutors on the 25th of November 1713, 28th January and 8th December 1714, “Found that the Said Robert Watson, the respondent's father's signing the inventories, and judicially producing them by a procurator, did sufficiently infer his acceptance of the tutory, and that he could not have the benefit of the quality in the nomination from the act of parliament 1696, unless the will had been made in Leige Poustie.”
So far the interlocutors of the Court were not appealed from.
1681, c 5.
The respondent afterwards recurred to a new defence, namely, that his father's signing tile inventories was no proof of his acceptance of the tutory, for the signing thereof was neither done judicially in Court, nor attested by subscribing witnesses, nor the name and designation of the writer of the inventory inserted therein, and, therefore, that by the act 1681, which requires these qualities in all writings, it was absolutely null and void. For Sustaining this allegation the respondent gave in a declaration or certificate of the clerks to the Sheriff Court, Commissary Court, and Town Court of Edinburgh, of the usual form and manner of receiving inventories from tutors and curators, wherein the writer thereof was either designed with witnesses subscribing to the execution by the tutors; or otherwise, they had been produced by the tutors and curators themselves in Court, and Signed there judicially by them and by the judge.
The appellant made answers, and the Court on the 27th of January 1715, “sustained the defence, that the inventories are null and void, not being judicially signed, and wanting writer's name and witnesses, and therefore found the same not Sufficient to infer the tutor's acceptance, unless there be posterior deeds of administration instructed.” The appellant reclaimed, and after answers for the respondent, the Court, on the 17th of February 1715, “adhered to their former interlocutor.” The appellant having insisted that the letter formerly produced by him, in which the respondent's father consented to the lending out of his money was a Sufficient posterior act of administration; after a debate on this point the Court on the 18th of February 1715, “found that the said letter is not probative, nor an act of administration
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The appellant prevented a further petition to the court wherein he instanced some other acts of the respondents father's administration, viz. his giving directions about the appellant's buildings, employing workmen therein and paying them, his putting the appellant to school, and ordering his stay and maintenance there, and he prayed that he might be allowed a commission for proving these and other acts of administration. After answers for the respondent, the Court, on the 26th of February 1715, “found the present acts of administration condescended on, with the former, are neither separately nor jointly relevant, and therefore assoilzied the respondent.”
Entered 11 May 1715.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 27th January, and the 17th, 18th, 19th, and 26th of February 1715.”
Heads of the Appellant's Argument.
1672, c. 28.
The act of parliament 1681. c. 5. on which the respondent's objection to the inventories was founded, related only to private deeds; but it did not respect inventories which are of another nature, given in judicially to the court upon citation of the pupil's nearest of kin, pursuant to the act of parliament 1672. c. 2. Among the solemnities prescribed by that act, these, of subscribing witnesses and designation of the writer are not to be found; and in the inventories in the present case, all that was prescribed in that act was observed, viz. the subscribing of the appellant's tutors and nearest of kin, and of the judge and clerk in court.
Those inventories were also signed by three of the appellant's nearest relations, who were indeed the most proper witnesses, and were called as attesters thereof; and three copies made of the same.
If there had been any formality wanting, yet no tutor ought to take advantage against his pupil of his own informal deed, to which he is bound ratione officii: for, if it should be otherwise, tutors may seem to act according to law, and at the same time may lay a foundation for their own discharge by their own acts, made with a design that they may not be evidence against them; for the poor pupils cannot be a check, but the law must be a check upon them.
One of the copies which had been signed by the respondent's father, and by the said other tutors, and by the judge and clerk, as aforesaid, was produced by the respondent himself; and it was never in the least pretended by him, that his father's name thereto, or to either of the other copies, was not of his father's own proper hand-writing.
The declarations or certificates produced by the respondent were not made by the said clerks upon any order of reference to them from the Court of Session, but were voluntarily made by
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Though it was contended that the letter before-mentioned was no evidence, as wanting writer's name and witnesses also, yet it was never denied that the respondent's father's name, as consenting to the lending of the said money, was of his father's own proper hand-writing, and the appellant offered to prove the same by witnesses.
Heads of the Respondent's Argument.
Though the act 1672, c. 2., ordaining tutors to make up an inventory, does not statute, that these inventories should be signed before witnesses; yet it provides that these inventories should be judicially produced before the judge, and an act made thereon; and nothing is said to be produced judicially, but what is acknowledged and subscribed before the judge, which this was not; and the act 1681, c. 5. is general, and provides, that all writings to be subscribed by any party, wherein the writer and witnesses are not named and designed, shall be null. since the date of that act no inventory without writer's name and witnesses, or not subscribed judicially, was ever exhibited or pleaded in judgment, as appears from the certificate of the proper officers where inventories are commonly recorded.
A tutor once accepting might be bound to make his own deeds formal, but since the respondent's father did not accept, neither can he be bound to complete the deed, from which his acceptance is to be inferred.
The acts condescended upon by the appellant were no acts of administration as tutor, but only acts of humanity and friendship. They were, that the respondent's father concurred with the other tutors in giving directions to repair a fence that had been made for defending the appellant's lands against the overflowing of the water; and that he employed workmen for that end; and that he had given his advice respecting the proper methods to be followed for the appellant's education. But it was never by law intended, that the advising with tutors made the adviser himself accountable as a tutor. On the contrary, the respondent's father having never concurred with the other tutors in disposing of the goods and effects of the appellant, nor in the letting, felling, or ordering of his lands, nor suffered himself to be inserted in any act as present at any sederunt or meeting of the other tutors, are plain proofs that he never accepted of the office of tutor, nor was
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The letters or missive, produced by the appellant, was not probative against the respondent's father, being neither holograph nor subscribed before witnesses, and so was void by the said act 1681, c. 5. It was also plainly vitiated in the date, and so by the law of Scotland could be no proof; neither did it appear at what time it was subscribed by the respondent's father.
Judgment, 13 July 1715.
After hearing counsel, It is ordered and adjudged, that the said petition and appeal be dismissed, and that the said interlocutory sentences or decrees therein complained of be affirmed; and it is farther ordered, that the said appellant do pay or cause to be paid to the said respondent the sum of 30 l. for his costs in this House.
Counsel: For Appellant,
Spencer Cowper.
Rob. Raymond.
For Respondent,
J. Jekyll.
David Dalrymple.
The judgment of the Court in that part of the cause, previous to the subject of the present appeal, by which it was found, that a tutor was not to have the benefit of a clause, that he should not be accountable for omissions, but only for actual intromissions, where the will was not made in Leige Poustie, is worthy of notice, though by the subsequent judgment of the Court, the effect of this was set aside.