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Scottish Court of Session Decisions >>
Gibson v The Lord Dunkeld and Thomson. [1680] Mor 16299 (2 July 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3716299-198.html
Tutors testamentary were removed as malversant for not making inventory of the pupil's estate.
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Mr. Alexander Gibson pursues a declarator against the Lord Dunkeld and Sir James Thomson, that the nomination of them to be tutors to Thomas Gibson his brother, by Sir John Gibson their father, might be annulled, because the defunct's Lady was named tutrix sine qua non, and she is dead; 2do, At least they ought to be removed as suspected tutors, because they made no inventory of the pupil's estate, conform to the act of Parliament, declaring their tutory null, who did not make eiks to the inventory, so soon as they came to knowledge. It was answered to the first, That a quorum, or sine quo non, when either they accept not, or die, does not vitiate the nomination; but it is ever presumed, that the defunct preferred those he named to all others, whether tutors of law or dative, so that sine quo non is only understood, that so long as such persons are in capacity, nothing should be done without them; to the second, The statute doth not annul the tutory for not making inventories, but for not making eiks, and cannot be drawn in consequence, being stricti juris. It was replied, That though there had been no nullity, yet the statute ordaining inventories to be made, imports an eminent duty of the tutors, the neglect whereof is a malversation and ground of removal, especially seeing the inventories were neither made at first, nor at any time since this process.
The Lords removed these tutors upon not making the inventories, but had no need to determine the other ground of the failing of the tutrix sine qua non.
