mily with his father, Fac. Coll. ii. 119. Barclay, (DICT. p. 9624.), unless he bring proof that he gave the child a separate allowance to provide for himself, or that the child was provided aliunde. Nor is it necessary, in such case, for the shopkeeper or tradesman to consult the father beforehand, or to demand from him a warrant to furnish the child upon credit for what he calls for, Stair, Jan. 20. 1672, Wallace, (Dicт. p. 13425.); Fount. Jan. 14. 1698, Hopkirk, (DICT. p. 12482.). This obligation for maintenance is reciprocal between parents and children; and hath as strong effects against the last as the first; for the tie of piety and gratitude, by which nature hath bound children, when they have a fund sufficient for it, to maintain their indigent parents, is supported by the civil sanction, d. L. 5. § 1. 2. 15.; L. ult. § 5. C. De bon. quæ liber.; July 20. 1710, Brown, (DICT. p. 448.)190. 58. A father is not barely bound to maintain his children du ring his own life; he ought so to provide for all of them, that they may be able to live comfortably after his death: It is therefore his duty either to make over by a deed inter vivos, or to bequeath to each of them by testament, such a patrimony or provision, in land, money or other subjects, as is suitable to his circumstances. This duty is however one of those which is left entirely upon the conscience, without being enforced by any civil sanction; and therefore, if the father neglect to grant provisions to his younger children, that obligation is not, upon his death, transferred against his heir. But the obligation to maintain the younger children is, by the usage of Scotland, justly continued after the father's death, if he was proprietor of a land estate, and is transferred against the eldest son or heir; who, as representing the father, must maintain these his younger brothers and sisters: For the right of primogeniture, which entitles the eldest son to the father's whole heritage exclusive of the other children, would be most iniquitous, if it were not charged with the alimony of the younger brothers and sisters, where the father has left them unprovided *191.Here an observation VOL. I. 2 s • The representative of a grandfather has been found liable in like manner, Sel. Decis. No. 214, Seaton, DICT. p. 431. But the contrary was found, Fac. Coll. iii. No. 44, Patersons, DICT. p. 429.-See ibid. Feb. 28. 1802, Tait, Dicr. App. 1. voce ALIMENT, NO. 3; Ibid. July 6. 1802, Christie, Dicт. App. 1. voce ALIMENT, No. 5. The Court have also found aliment due to one sister-uterine by another, who had been left her mother's sole executrix, Fac. Coll. ii. 183, Scott, DICT. p. 440.; Sel. Decis. 158. Scott, DICT. App. 1. voce PARent and Child. 190 Anderson, 25th Jan. 1754, Fac. Coll. DICT. p. 427; Paterson, 25th June 1761, Fac. Coll. DICT. p. 429; Seaton, 11th Feb. 1764, Sel. Dec. DICT. p. 431; Campbell, 25th Feb. 1809, Fac. Coll. 191 It would seem, that in every case, the representatives of a person deceased, whether the degree of relationship be nearer or more remote, and whether the succession, by which they are lucrati, consist of heritage or moveables, are, out of this succession, liable in aliment to those whom the deceased himself was under a natural obligation to maintain. Thus, in the cases referred to, supr. p. 146, not.* and p. 148, not. *, a wife was found entitled to aliment from the representative of her husband, (although, as in the case of Lowther, "a distant collateral relation,") her legal provi sions being defective. In the same way, a mother and grandmother were found entitled to aliment out of the son and grandson's estate, though "very distant collateral relations had succeeded;" Buchanan, 21st January 1813, Fac Coll. So also in the case of the sisters-uterine referred to above, not. *, h. p. And so also, perhaps, especially since the decisions in Tait and Christie, supr. not. 18, as to the obligation of the representative of a grandfather to aliment the grandchildren, notwithstanding the conflict between the two cases of Seaton and Patersons, supr. not. *, h. p. :-See Dalziel, 14th Dec. 1788, Fac. Coll. DICT. p. 450. A father having settled certain provisions on his younger children, payable at their respective TITLE VI. Father's obligachildren aftion to provide ter his death, and obligation on the heir to maintain his brothers and sisters. Book I. observation may be made by the way, (though it does not directly concerns the relation between parents and children), that in questions about the continuance of the burden, as thus transferred after the father's death against his heir, a reasonable distinction is made in our practice between the alimony due to brothers and to sisters. The heir is bound to maintain his younger brothers, only until their majority, because they are presumed capable, after their perfect age, of earning a livelihood to themselves by business or employment. But sisters must be maintained till their marriage; because the daughters of gentlemen can do as little for themselves after as before majority, till they get a husband to provide for them, Clerk Home, 114. (Douglas, DICт. p. 425.). The endurance of the aliment to sisters seems to depend on the degree of opulence as well as the rank of parties. Where the family-estate of a gentleman was small and somewhat encumbered, the aliment to sisters was therefore found due only till they should come of age*. In persons of lower rank, the obligation to maintain the sisters lasts no longer than till they are fit to be put to an employment, or to enter into service. By the law of nature considered abstractly, the eldest brother is not obliged to maintain a younger while the mother is alive, who is more directly debtor in that obligation. Yet in the case of an eldest son succeeding to the whole heritage of his father, the right of primogeniture is justly charged with the maintenance of all the younger children of him to whom that eldest succeeds as sole heir; and the mother's jointure is considered as no more than a suitable provision for herself, Clerk Home, 114. (Douglas, DICT. p. 425.) t. This obligation upon an eldest son to maintain his brothers and sisters, hath place only where he takes an estate as heir to his father: If he does not succeed to, or otherwise represent him, he is not subject to any such claim of alimony ‡. 59. It Kilk. NO. 6. voce ALIMENT, Bisset, DICT. p. 419. In this case the aliment was appointed to continue "till the majority or marriage of the daughters, whichsoever should first happen." More lately, the Court gave aliment to a female (the niece of the defender)" during her life, or till her marriage," Fac. Coll. Dec. 14. 1788, Dalziel, DICT. p. 450. 192. + The heir is indeed primarily liable as representing his father; yet if his estate do not afford a sufficient aliment for himself, as well as for the other children, the deficiency must be made up by the mother, who is liable secundo loco to maintain her children, Rem. Decis. No. 99., Kilk. No. 6. voce ALIMENT, Falc. 11. 20, Bisset, DICT. p. 413. Fac. Coll. Jan. 25. 1754, Anderson and Gibson, DICT. p. 427.; ibid. Jan. 16. 1756, Malcolms, DICT. p. 439. respective majorities, died, while they were yet under age; it was found that they must be alimented in the meantime, but the Court" did not think it necessary, in hoc statu, to "determine, whether this was ultimately to come out of the fee of their own provisions, or "out of the subject belonging to the heir;" Riddels, 6th March 1802, Fac. Coll. DICT. v. ALIMENT, App. NO. 4. The principle laid down by the Lord Chancellor, in the case of Maidment, ant. not. 185, would seem to settle the question here reserved, in favour of the first alternative; unless an argument could perhaps have been raised on the presumed intention of the father, which seems not altogether impossible from the terms of the report. "It is indeed observed by Kilkerran, in the previous case of Bisset," Suppose an " heir to enjoy an opulent estate, and to represent a family, with the dignity of which "it could not well consist that the daughters should go to service, marriage would still "seem to be the proper period for the endurance of the aliment." See also Scot, 8th March 1759, Fac. Coll. Sel. Decis. DICT. p. 440. and App. No. 1. PARENT AND CHILD. 59. It were to deviate from the proper subject of this treatise, to enter into a particular detail of those natural obligations between parents and children, which seldom receive support in any country by positive law; ex. gr. the honour and obedience due by children to their parents. But we shall afterwards learn, that some grosser breaches, even of that duty, may, by our law, be brought under the cognisance of the civil magistrate. TITLE VI. Duties of ho nour and obe dience on the part of children. TIT. VII. Of Minors, their Tutors and Curators; and of the Re- PERS 1. OF MINORS, THEIR TUTORS AND CURATORS. minors by tutors and curators. ERSONS who, from the want either of years, or of the exercise Guardianship of of reason, cannot conduct themselves, or manage their estates with discretion, and who have lost their father, who was their natural guardian, supr. T. 6. § 54., are made the special object of the protection of the law in every country, and are furnished with proper guardians, till their perfect age, or their return to a sound judgment.And first, of those who stand in need of guardians on account of their lesser age. The Roman law takes notice of several ages, as infancy, the age next to infancy, the age next to puberty, puberty itself, and majority: And though the law of Scotland makes some difference in each of these, the stages of life principally distinguished with us are only three, pupilarity or pupilage, puberty or minority, and majority. A child is in pupilage from the birth till the age of fourteen, if a male, and till twelve, if a female. Minority begins where pupilarity ends, and continues till majority; which is, by our law, the age of twenty-one years, both in males and females. But minority, when made use of in a larger sense, includes all under age, whether pupils or puberes. The guardians who are intrusted with the care of minors, get the name either of tutors or curators. Tutory, from tueri, is a power and faculty to govern the person, and to manage the estate of a pupil; that is, of one who hath not yet attained the age of puberty. Curatory, from cura, is the power of managing the estate, either of a minor pubes, or of a major who is incapable of acting for himself through a defect of judgment. Division of tu Tutors testamentary or nominate. 2. In the doctrine of tutors, the law of Scotland nearly resem- an Book I. Tutors-testamentary, their office and obligations. an end to the father's own administration. The right of naming 3. Testamentary tutors are justly preferred to all others; because the father's express will, declared by his nomination, ought to prevail over his presumed will, upon which the office of tutor of law is entirely grounded. Hence the rule of the Roman law, That as long as a tutor-testamentary can be hoped for, there is no room for any other sort of tutor. Though therefore testamentary tutors should not have for many years moved the least step, importing the acceptance of the office; yet so soon as they accept, they exclude the tutor of law, though he should have actually served himself tutor, and entered upon the management, Dec. 17. 1631, Auchterlony, (DICT. p. 16258.). Upon this ground also, the father's nomination is so favourably interpreted, that though one or more of the tutors-testamentary should lie under a legal incapacity, yet if there are others in the nomination who can lawfully exercise the office, the persons incapable are held pro non adjectis, as if they had not been named, and law supports the nomination as to the rest, July 3. 1711, Baird, (DICT. p. 7431.). Hence, lastly, a testamentary tutor is authorised by the nomination itself, to enter into the immediate exercise of his office, without any form of law, and is exempted from making oath de fideli administratione. And from the same favour of law, he neither was by the Roman law, nor is by ours, * A person who had been appointed by the father of a natural child "guardian to "the person and estate of his said reputed son," was found entitled to custody of the boy, preferably to one to whom he had been previously committed by the father, Fac. Coll. Nov. 23. 1785, Johnson, Dicт. p. 16374 193. A father's powers of naming a factor for the tutors of his children may be exercised in similar circumstances, Kames's Rem. Decis. 38. Tutor of Straiton, DICT. p. 16348. Where two are appointed, without expressing them to be joint tutors, though one of them should die or decline the office, it will subsist in the person of the other, Kilk. voce TUTOR AND CURATOR, NO. iv. Young, Dicт. p. 16346; Fac. Coll. Aug. 2. 1758, Children of Fisher, DICT. p. 16361. 193 If, in competition with the mother of a natural child, the father hath himself no proper right of custody, supr. not. 168, so neither can he exclude her by any appointment of tutors. As to the appointment of curators to natural children, vid. infr. not. 199 ours, under a necessity of giving security rem pupilli salvam fore, that he shall justly account for his management; because the confidence which the father places in him by the nomination creates a presumption, that he was well assured of his probity and diligence, L. 7. § 5. C. De curat. fur. Yet the court of session sometimes ordain, ex officio, testamentary tutors to give security, where there is ground to suspect either their honesty or their circumstances, Fount. Feb. 23. 1693, Count. of Callender, (DICT. p. 14701.). 4. If the father hath made no nomination of tutors, or if the tutors named by him have not accepted, or if their nomination has fallen by their death, or by a supervening disability, there is place for a tutor of law, or tutor-legitim; so called, because his right proceeds from the mere disposition of law. As tutors of law may, after they have served tutors, in the manner soon to be explained, and entered upon their office, be obliged to quit it, upon the testamentary tutors offering to accept, supr. § 3., they frequently make the testamentary tutors parties to the service, that they may then declare their option either to accept or to renounce; and if they renounce, they cannot be afterwards admitted to the office, July 6. 1627, Campbell, (DICT. p. 16246.). By the ancient Roman law, the office of tutor-legitim devolved on the next agnate, to the exclusion of cognates; because the next agnate was entitled to the legal succession, and it was to be presumed that he who had the prospect of succeeding to the pupil's estate would be the most careful to preserve it, L. 1. pr. De leg. tut. Agnates, in the sense of the Roman law, were persons related to each other through males only: The relation of cognates was connected by the interposition of one or more females. Thus a brother's son is his uncle's agnate in the language of the Romans, because the propinquity is connected wholly by males; a sister's son is his cognate, because a female is interposed in that relation, § 1. Inst. De leg. agn. tut. But in our law-language, all kinsmen by the father are agnates, though females should intervene; and those by the mother, cognates. Justinian abolished so entirely the distinction of the old Roman law between agnates and cognates, that he admitted, both to the legal succession, and to the office of tutor of law, not only kinsmen by the father, though a female had been interposed in that relation, but even those by the mother, Nov. 118. C. 4, 5. We in Scotland have steered a middle course: For we exclude from those rights all who, in our law-style, are called cognates, that is, all relations by the mother; but we admit all kinsmen by the father, though they should not be agnates in the sense of the Roman law. The tutor of law must be a male agnate: For though a father or a magistrate may appoint female tutors; yet, in the case of tutors-legitim, who are marked out purely for the sake of blood, without regard to personal qualifications, the law has thought fit to pass by those whom nature seems to have formed for offices of a more domestic kind. Hence a woman, though she be next in succession to the pupil in default of his own issue, cannot be served tutor of law to him 195. 5. Where there were two or more agnates equally near in blood to the pupil, and of course equally entitled to the legal succession, the Roman law gave the office to all of them, L. 9. De leg. tut.; but as the succession of heritage in males descends only to one by VOL. I. 2 T the 195 It is no objection to a person being tutor at law, that he does not reside in Scotland; Bell, 10th March 1784, Fac. Coll. DICT. p. 16374; Rob, 22d Dec. 1814, Fac. Coll. |