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Scottish Court of Session Decisions >>
Scot v Kennedy. [1675] Mor 8970 (10 December 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor218970-087.html Cite as:
[1675] Mor 8970
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A father, or any other person, disponing his means, may qualify his own gift, and in special with that provision, that if the persons be pupils or minors, the same should be administered by the persons named in the said disposition; and yet these, in whose favours the disposition is made, may choose curators, who will have the administration of any other estate belonging to them; but if they be puberes, their persons are free, and neither of the said administrators can pretend to the keeping of them, quia curator datur rebus.—See Tutor and Pupil.
Dirleton, No 316. p. 155.*** Stair reports this case:
Umquhile———Wallace granted assignation of several bonds to his two bairns, and appointed Robert Kennedy overseer to them to manage these sums during their minority, and in case of the miscarriage or debauchery of either of them, to apply their share, or a part thereof, to the other. The boy being set by Robert Kennedy to one Reid goldsmith, was seduced and withdrawn by one Purves, whom he chose curator, and became apprentice to one Scot goldsmith who is also chosen curator. Kennedy alleged, That the father had committed the administration of the sums assigned to him during the children's minority, and made him overseer, which in effect was tutor; and therefore having set the boy to a master during his pupillarity, he ought to be restored to him and to be put to his former master; and, albeit parents cannot appoint curators, yet where they do expressly assign their means with that provision, it is valid as a condition of the assignation.
The Lords found that the management of the sums assigned belonged to Kennedy by virtue of the assignation, not as curator but as administrator; and found the minor might choose other curators, but that they could not meddle with the sums assigned; and found, that after pupillarity the minor's person was free, but as to what master he should serve, ordained both indentures to be produced, and both the masters to be heard.
