Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Aikenheads v. Durham
Date: 24 June 1703 Case No. No. 95.
A tutory found null, for want of the sine quo non.
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Adolphus Durham being debtor to umquhile Sir Patrick Aikenhead by bond, and charged, he suspends, on this reason, That as he is most willing to pay, so he must have a valid discharge, which the bairns cannot give him, not being legally authorised by tutors, in so far as their father's nomination is dissolved and expired, for he had named three or four tutors, and Dame Sarah Sharp, his lady, sine qua non, and declared any two a quorum, she always being one; and so it is, her right of tutory ceases by her being re-married. Answered, This incapacity is no more than if she had never accepted; in which case the tutory would have subsisted in the person of any other two of the tutors nominated, which the father had declared a quorum. 2do, Her being appointed sine qua non, hindered them to act, without her consent, so long as she continued a widow; but how soon she married again the first quorum did subsist and reconvalesce; and that the Lords found so in the case of the Marquis of Montrose's tutory, No. 92. p. 14697. when his mother re-married; and certainly the father confided in the friends he entrusted, whether in conjunction with his relict or not. The Lords having read the terms of the nomination, and that she was in all events made sine qua non, they found the tutory null, and that Adolphus could not safely pay till the children were authorized, either by the nearest agnate serving tutor of law, or by some person taking a gift of tutory-dative. This could have been prevented, by declaring, that the tutory should subsist even after the death, incapacity, or non-acceptance of the sine qua non; but this was omitted.
Fol. Dic. v. 2. p. 384. Fountainhall, v. 2. p. 184.
