Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Jean Craich and Stewart Her husband
v.
Anna Napier, Relict of Craich

Date: 22 June 1739
Case No. No. 268.

Whether a minor can assign to his curator?

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William Craich of Duchray became bound in his contract of marriage with Anna Napier his second wife, to provide to the bairns of the marriage £.500 Sterling; with a proviso, That if there should be only one daughter of the marriage, the same should be restricted to £.300 Sterling.

In the year 1727, the said William, upon the narrative of the contract of marriage, and that his daughter Katharine was the only child yet procreated of the marriage, assigned to the said Katharine Craich, and the heirs of her body, or her assignees, which failing, to Jean Craich his daughter by a former marriage, her heirs, executors or assignees, the sum of £.300 Sterling, due by the bonds therein mentioned, reserving his own liferent and power to alter: And by the same deed nominated Anna Napier as sole tutrix and curatrix to her daughter. William Craich died that same year 1727, while his said daughter Katharine was an infant; and her patrimony was managed by her mother, pursuant to the above nomination.

In the year 1736, while Katharine was about thirteen years of age, she assigned the foresaid sum of £.300 to Anna Napier her mother, her heirs or assignees; with this provision, That it should be lawful for her at any time, in her lifetime and on deathbed, to alter the disposition, and to uplift or assign the subjects conveyed: And in May 1737, she nominated her said mother her executrix and sole legatrix, and universal intromitter with her whole goods, gear, and moveables, &c.

Katharine died soon after this testament; and a question having arisen, touching the said £.300 Sterling, between Anna Napier, as having right by the assignation granted by Katharine, or by her testament as universal legatary, or both, and Jean Craich, as having right by the substitution in her father's conveyance to Katharine; in a multiple-poinding at the instance of the debtors in the bonds for the said £.300 Sterling, the Lords by a narrow plurality found, “That the assignation by William Craich to Katharine his daughter, the heirs of her body, or her assignees, of the sums provided to her by her mother's contract of marriage, which failing, to Jean Craich his daughter of a former marriage did not limit or prejudge the power of Katharine to dispose of the subject at her pleasure, even by a voluntary or gratuitous deed; and that she had actually disposed of the same to Anna Napier her mother, first, by her assignation reserving liberty to herself to alter in any time of her life, and also by her testament, whereby she had nominated the said Anna Napier her executrix and universal legatary; and therefore preferred the said Anna Napier:”

Notwithstanding what had been urged by the minority, that the assignation by Katharine to her mother was void; as notwithstanding the power to alter, it did not become a testament, but still remained a deed inter vivos, which her curatrix could not authorise in rem suam, and was therefore no better than an assignation to a third party would have been when granted without her consent; and that the testament was ineffectual, for that the nomination of Anna Napier to be executrix and universal legatary, without specially legating the bond, carried no more than would have fallen under the right of an executor; but so it is, that a substitution excludes the executor.

Kilkerran, No. 2. p. 345.