Scottish Court of Session Decisions

On the death of the late Henry Shields, merchant, he left between £5000 and £6000, which was conveyed to Alexander Morton and others as trustees. He was survived by a widow and three daughters, aged from five to eight years, to whom the trustees were named tutors and curators. Some years after his death, the widow married Walter Thorburn, upholsterer in Edinburgh, whereupon the tutors nominate petitioned the Court to “find them entitled to direct the place of the residence of the said pupils, and their education, as aforesaid; and to ordain the said Mrs Thorburn and all others to deliver up the said pupils, Henrietta, Catharine, and Elizabeth Shields, to the petitioners, in order that they may be placed in a respectable boarding school, as above-mentioned.”

The trustees contended that the mere circumstance of entering into a second marriage was sufficient to justify the application. They alleged other facts in support of it, all of which were disputed.

Mrs Thorburn and her husband answered, that the entering into a second marriage did not, in itself, justify the Court in withdrawing pupil children, especially daughters, from the superintendence of their mother, a person of unblemished character, and in a suitable position in society. But they pleaded, farther, that the health of all the children, and particularly the eldest, was so delicate, that they could not be removed without serious hazard of injury. In support of this allegation, they produced two medical reports from gentlemen who attended the family.

The Court, “before answer, remitted to Dr Abercrombie, physician in Edinburgh, to visit the children, and consult with the medical gentlemen who have been in use to attend the family, and to report,—the Doctor to be waited upon by the agents for the parties, together with the petition and answer, and this interlocutor.”

A report was accordingly made.