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The Countess of Callendar v The Earl of Linlithgow and Others. [1693] Mor 14701 (23 February 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Mor3314701-094.html Cite as:
[1693] Mor 14701
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
The Countess of Callendar v. The Earl of Linlithgow and Others
Date: 23 February 1693 Case No. No. 94.
Found in conformity with the above.
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The Lords advised the complaint at the Countess of Callendar's instance against the Earl of Linlithgow and others, for not accepting to be tutors to her children, conform to her husband's nomination, and that she and the Earl of Home, though not a quorum, might be authorized to act; as was found, supra, in the cases of Watts and Scrymgeour, and in Stair, 11th February, 1676, Turnbull, No. 23. p. 9162. voce Mutual Contract; and it being alleged, That the nomination was null, through the non-acceptance of a quorum; and that the foresaid cases held, where tutors had entered and accepted, and were in possession, and not in suspiciendo onere tutelæ, as here; the plurality of Lords found there was no material difference betwixt these two cases, and therefore sustained the nomination, and those who offered to accept; but, in respect of the circumstances, burdened them with the finding caution; which was urged might not only be rem pupilli salvam fore, but also for relief of the other co-tutors; though regulariter testamentary tutors are not put to find caution, unless there be a suspicion of their malversation, vel si vergant ad inopiam. See Tutor and Pupil.
Fol. Dic. v. 2. p. 384. Fountainhall, v. 1. p. 564.
