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The late Viscount of Primrose did nominate several friends to be tutors and curators to his son, with power to them, or the major part of those who should accept and be alive, (his Lady being always sine qua non), to exercise, &c. and in case of my Lady's marrying again, the Earl of Roseberry is appointed sine quo non in her place. Upon the present Viscount's passing the age of pupillarity, all the tutors declined to be curators, (which they are allowed to do by the act of Parliament 1696), except the Earl of Roseberry, and therefore the Viscount takes out an edict for choosing new curators; which coming in by way of advocation,
It was alleged for the Earl, That the case was now to be considered in the same way as if it had occurred in the question of the acceptation of the tutors; and by the nomination, if none had accepted but the Viscountess, who was tutrix sine qua non, the nomination would have held, since not only no quorum is named, (and so any one who accepted is fully empowered), but also all dubiety is removed by the words of the nomination, viz. “the foresaid persons, or such of them as shall accept;” which can have no other import, but the giving the power to any one who should accept, since pluralitas diversos effectus respiciens, in singularitates resolvitur. Thus, in law, “si sine liberis decesserit,” though a plural expression, yet is fully answered by one child.
Answered for the Viscount: That the alternative, “or the major part of the acceptors,” does as really and effectually determine a quorum as if a particular number had been named; for thereby certainly it was the father's intention, that at least as many should accept, as there still might be a majority, for preventing any stop in the management; and this could not happen in any number under three, since no number under that contains a majority; so that here, indeed, the quorum, in some manner, is less ambulatory or indefinite, since it may be less or more, according to the number of the acceptors; but this is certain, and is plainly a demonstration, that the smallest quorum must still be the majority of the acceptors, and consequently cannot be under two, nor the acceptors less than three; so that here the case is the same as where curators are named, and a particular quorum expressed, and not so many acceptors as make up the quorum; in which case, the curatory becomes null; 25th January, 1672, Sir James Ramsay contra Maxwel, No. 178. p. 9042. Further, that the quality of sine quo non did of itself likewise show, that it was not intended that the tutory should subsist in that one person; for a sine quo non necessarily supposes, that there must be other tutors acting with a less power. Lastly, That there is a very reasonable distinction in this case betwixt tutory and curatory; for though it may be presumed the father's will in dubio to prefer any one of the tutors nominated to a tutor in law, yet in the case of curators, who are only to concur and act with the minor, law has considered him to have a sufficient judgment to make a fit choice.
The Lords found, That in the case which hath happened, the father's nomination hath failed, and that the Viscount is at liberty to choose his curators.
Act. Tho. Kennedy.Alt. Boswel.Clerk, Mackenzie.
Bruce, No. 77. p. 93.
