Scottish Court of Session Decisions

The parties to this case were, 1st—John Borthwick Greig and Others, who were nominated under the antenuptial contract of marriage between George Greig and Mrs J. Richardson Dickson or Greig, to be tutors and curators to the child or children of the marriage—of the first part; and 2d, the said John Borthwick Greig and Others, nominated in a trust-disposition and settlement executed by the said deceased George Greig, to be tutors and curators to the children of the said marriage—of the second part.

The circumstances under which the question arose were as follows:—Mr George Greig of Eccles died on 19th June 1869, and was survived by his wife Mrs J. Richardson Dickson or Greig, and by three children, viz., Mary Greig, aged five years, James L. Greig, aged four years, and George Greig, aged two and a half years, who was a posthumous son. The antenuptial contract of marriage between the said Mr and Mrs Greig contains the following nomination by Mr Greig of tutors and curators to the children of the marriage—“And failing any other nomination or appointment by him, the said George Greig hereby nominates and appoints the said trustees, and the survivors or survivor of them, and the said Isabella Dickson Richardson Dickson, to be tutors and curators to the child or children of the present intended marriage; and he hereby expressly dispenses with their lodging tutorial or curatorial inventories, and declares that they shall be entitled to the same immunities and privileges as if they were to lodge such inventories.” Two of the parties named declined to accept the said offices of tutors or curators. The other parties named, being the parties hereto of the first part, were willing to accept the said offices in the event of their being found entitled to do so. On 22d May 1869 Mr Greig executed a trust-disposition and settlement, whereby he conveyed his whole estates, heritable and moveable, to the parties hereto of the second part, as trustees for the purposes therein mentioned, and inter alia for fulfilment of the obligations incumbent upon him in his said contract of marriage. The said trust-disposition and settlement contained the following nomination by Mr Greig of tutors and curators to his children:—“And whereas the persons who are nominated and appointed by me, under my said contract of marriage, to be tutors and curators to the children of the marriage, are not all the same persons as my trustees named herein, and it is desirable that they should be the same: Therefore I do hereby revoke and recall the nomination of tutors and curators contained in said contract of marriage; and in lieu and place of the nomination therein contained, I hereby nominate and appoint my trustees herein before named, and the said Mrs Isabella Dickson Richardson Dickson or Greig, and the survivors or survivor of them, to be tutors and curators to the said James Lewis Greig and Mary Mitchell Greig, and to any other child or children who may yet be born of my said marriage; and I expressly dispense with their lodging tutorial or curatorial inventories, and declare that they shall be entitled to the same immunities and privileges as if they were to lodge such inventories: Declaring hereby, that if from any cause the nomination of tutors and curators contained in this deed shall not take effect or be set aside, then I expressly declare that the nomination of tutors and curators as contained in my said contract of marriage shall stand and be of full force and effect.” Mr Greig died on 19th June 1869, possessed of the

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estate of Eccles in Berwickshire, and other heritable property of considerable value. He died of the disease under which he was labouring at the date of his trust-deed, and within sixty days of its execution. The trustees named in the said deed accepted the trust, and they and Mrs Greig also accepted office as tutors of Mr Greig's children under the nomination contained in the trust-deed. They were advised that it was their duty, in the capacity of tutors for Mr Greig's heir-at-law, the said James Lewis Greig, to reduce the said trust-deed, in so far as it affected his interests. This was done by decree of the Court of Session. After the date of the said decree, the parties of the second part, as tutors of the said James Lewis Greig, made up titles in his person to certain of the heritable properties to which he succeeded as heir of his father, and took over the management of the pupil's whole estate. After the said trust-deed was reduced as aforesaid, and the other acts above mentioned were performed by the parties of the second part in the character of tutors of the said James Lewis Greig, a question arose as to whether the said second parties had any right to the office of tutors of the said James Lewis Greig. The parties of the first part maintained that, as the nomination of tutors and curators by the said trust-deed, as regarded the latter of the offices, was reducible on the ground of deathbed, and had been set aside quoad the heir-at-law, the effect of this was to set up the nomination, not of curators only, but of tutors and curators, quoad the whole children of the marriage; or, at any rate, quoad the heir-at-law, contained in the marriage settlement. They also maintained that it was the manifest intention of the testator that whichever deed took effect the same parties should hold both offices of tutors and curators.

The parties of the second part maintained, on the other hand, that although the nomination of curators by the said trust-deed was reducible, and had been set aside quoad the heir-at-law, the nomination therein of tutors to him and the other children was valid, and subsisted, and therefore that the event had not occurred on which, in terms of the said trust-deed, the nomination of tutors contained in the marriage-contract was to take effect.

The questions of law which the parties submitted for the opinion and judgment of the Court, were:—

“(1) Are the first parties entitled to the office of tutors of the said James Lewis Greig? or,

(2) Are the second parties entitled to that office?

(3) Are the first parties entitled to the offices of tutors of the said younger children of the said marriage? or,

(4) Are the second parties entitled to that office?”

At advising—