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The writer of a testament was named therein tutor-testamentary, having, without confirming or protesting against any acceptation of tutory, procured a gift of his pupil's ward and marriage, and having two years after the gift consented to a discharge with the pupil of some rents, without designing himself either tutor or donatar; and having afterwards pursued as donatar;
It was alleged: That the pursuer could have no benefit by the gift, being to be looked upon as tutor; and his acceptation of the office was inferred from the foresaid circumstances, especially he being the pupil's uncle.
Answered: The pursuer's writing himself tutor in the testament can import no acceptance; and his consent to the pupil's discharge being posterior to the gift, cannot be joined to make any qualification of acceptance, and tutors are only liable from the date of their acceptance.
