Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Watts v. Mr David Scrymgeour.
Date: 10 December 1692 Case No. No. 93.
A tutory sustained, although the number named as a quorum failed.
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The question was, Whether a tutory subsisted, where a quorum was named by the father, and all refused to accept, but one. Upon the one hand, the Lords, on the 11th February, 1676, Turnbull, No.23. p.9162. voce Mutual Contract, found it valid, upon the presumed will of the defunct, preferring any one of these, before a tutor-dative. On the other side, the Lords, in the case of the Tutors of the Marquis of Montrose, No. 92. p. 14697. had found such a nomination null; and though that was a late decision, to get the Marquis' education into Popish hands, yet the Lords would not rashly alter it without a new hearing in presence.
1692. December 22.—The Lords advised the case, mentioned 10th current, Watts against Scrymgeour, and found, That the failing of the sine quo non, and much less the failing of the quorum, did not annul the whole tutory, as long as there was any of the persons nominated alive, and ready to accept and act; for they thought the defunct-testator trusted any of those he had named, more than the tutors of law. Yet sundry of the Lords dissented from this, and urged, that a parent might nominate a writer or servant in conjunction with others whom he trusted more, that the said servant might do the servile part; yet, if it had not been in contemplation of the rest, their check and oversight, he would not have given him the tutory alone, if the rest should either die, or abstain from accepting; and that in a nomination of two or more tutors jointly, though there were neither a quorum nor sine quibus non named, yet it seemed to be the defunct's conjectured meaning, that except they all embraced none could act. But the plurality of the Lords sustained the tutory.
Fol. Dic. v. 2. p. 384. Fountainhall, v. 1. p. 531, 536.
