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Scottish Court of Session Decisions >>
Fothringham of Poury v Kinloch of Kilry and Fothringham, his Mother. [1701] 4 Brn 499 (20 February 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Brn040499-0003.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
Fothringham of Poury v. Kinloch of Kilry and Fothringham, his Mother
Date: 20 February 1701
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Cicilia Fothringham, sister to the Laird of Poury, being first married to Doctor Kinloch, Laird of Kilry, and being left with several children, she next marries Ogilvie of Murtle; and a controversy arising anent the custody of her children at Privy Council, it ends in a transaction, by which they are allowed to stay with her till they were twelve years old, within two years of their choosing their curators, and then they were to be sequestrated in some indifferent friend's hand, that they might not be influenced in the freedom of their election; and she was to have an allowance for their aliment till that time. The children being boarded in schools in Dundee, their mother and her second husband cause take out brieves from the Chancery for choosing curators to the eldest son, and thereon cite Poury, as his nearest of kin on the mother's side, to he present, in terms of the Act of Parliament 1672; who gives in an advocation of the brieves, on thir two reasons:—1mo. That this was against the faith and design of the contract past betwixt them for securing the children from impressions in electing and naming their curators. 2do. That it was illegal, and an anticipation, the boy not being fourteen full till March next, and done to surprise them.
The Lords, to obviate all designs, advocated the brieves, and, in the meantime, stopped the election.
It might be fit, by an Act of Parliament, to secure minors against this hazard in being trepanned and imposed on in making the nomination of their tutors; experience showing how oft their simplicity and credulity is abused in that matter, to their great prejudice. It is true, the 8th Act of Parliament 1696 allows the Lords to remove curators, or to find better caution, where their condition begins to fail: but this is not an adequate remedy for the disease; importunity, flattery, and crafty insinuations being as like to prevail on a weak minor as upon persons on deathbed; which is prevented by a prohibition.
