Scottish Court of Session Decisions

Subject_1 TUTOR - CURATOR - PUPIL.

Marion Kilpatrick
v.
John Macalpine

Date: 25 January 1793
Case No. No. 309.

A tutor named by a grandfather, who neglects to make up inventories, is liable in solidum, although appointed by the same deed trustee over the pupil's estate.

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James Kilpatrick appointed John Macalpine, John Eadie, and others, to be tutors and curators to Marion Kilpatrick, his grand-daughter. By the same deed, he named them his executors and trustees over the whole subjects she enjoyed from him, and declared, “that they should not be liable in solidum, nor each for the other, but each only for his own actual intromissions.” Macalpine and Eadie accepted of these offices, but they made up no inventories of Kilpatrick's estate. Macalpine intromitted with some part of his effects; but the chief management devolved on Eadie, who afterwards became bankrupt, deeply in debt to his pupil.

When Marion Kilpatrick came of age, she brought an action of count and reckoning against her tutors, concluding, that they should be found liable singuli in solidum, because they had neglected to make inventories of the subjects under their management. Appearance was only made for Macalpine, who, in defence

Pleaded: The defender acted not as tutor, but trustee for Marion Kilpatrick. Had another been appointed trustee, the defender could not, as tutor, have interfered with the management of her estate. In fact, she had no effects of which qua tutor he could make an inventory. Her sole right in the estate of her grandfather consisted in the faculty of forcing the trustees to denude in her favour. The acts 1672, C. 2. and 1696, C. 8. are therefore not applicable to the present case. And at common law, neither tutors, nor joint administrators of any sort, are liable further than for their own intromissions.

Answered: That tutors, even when appointed by the father, in terms of the act 1696, C. 8. are, if they neglect to make up inventories, liable singuli in solidum, was the unanimous judgment of the Court in the case, 10th July, 1788, Henderson against Duff and others, No. 305. p. 16375. A father may often find it convenient to vest the tutors of his children with the additional character of executors or trustees. And this mark of confidence, so far from diminishing, ought rather to increase their obligation to a faithful discharge of their duty. Accordingly, in a case not collected, 10th March, 1790, Hawkins against Hamiltons, it was found, that a person who had been nominated by a father, both tutor and executor to his child, by neglecting to make an inventory, subjected himself to the penalties of the act 1672.—(See Appendix.) The contrary doctrine would indeed operate as a virtual repeal of the acts 1672 and 1696.

Besides, it is the opinion of Mr. Erskine, B. 1. Tit. 7. § 27. in which he is supported by several other writers on the subject, and the decisions quoted by him, that even at common law, tutors are liable singuli in solidum.

The Lord Ordinary reported the cause on informations.

One of the Judges seemed inclined to find the defender liable only for his own intromissions, on the presumption of his having managed the estate merely in the character of trustee. He thought, that in a case where no fraud was alleged, a severe interpretation of the statutes might be dangerous, by deterring many from accepting of gratuitous offices of this nature.

The Court, however, were of opinion, that there was great negligence in the conduct of the defender, and that the point was already in a great measure settled by the decision, Hawkins against Hamilton. They also thought it would be attended with bad consequences, to relax in any degee the salutary regulations of the statutes 1672 and 1696. They therefore

Repelled the defences.

Lord Reporter, Dreghorn. Act. Cullen. Alt. Dean of Faculty. Clerk, Sinclair. Fac. Coll. No. 18. p. 37.