Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XV.
Tutors and Curators.
Lord Drumore, Sir John Baird, and Sir James Dalrymple, v. Mrs Isabella Somervil.
1742.
February24. and
June and
16.
1742. Case No. No. 98.
Effect of the failure of a sine qua non.
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Where one had named his spouse, his brother, and several others, tutors and curators to his only child, and appointed the major part of those who should accept, and failing any of them by decease, the major part of the survivors to be a quorum, his said spouse being always one of the quorum, and sine qua non, and after her death or incapacity,, his, brother being always one of the quorum and sine quo non; and in case of the death or incapacity of his spouse or brother, declared that the tutory and curatory should not dissolve, but should continue with the other tutors and curators so long as any of them were in life, the Lady refused to accept: The Lords at first “Found the nomination had thereby fallen;” but upon advising petition and answers, one or two of the Lords having altered their opinion, it was by plurality of voices found, “That the nomination did not fall by the Lady's refusal to accept.”
The Lords unanimously considered it as clear law, notwithstanding of certain decisions to the contrary, that the failing of the quorum, or of the sine qua non, sopites the nomination; and, the case would be the same of the failure of one of more tutors or curators named jointly. The reason in all these cases is the same, that the father seems to have put no trust in the rest without the quorum, or without the sine qua non, in, any one or more, of tutors named, jointly, without the whole. But as that reason did not apply in this case, where the father, upon the failure of both, the sine quibus non, had declared that the tutory and curatory should not dissolve, but continue with the rest so long as any of them were on life, the majority of the Lords came to be of opinion, that this gave sufficient evidence, that the father intended to trust any of the persons, named; and that the omitting to provide for the case of the lady's not accepting, as, he had done for the cases of death inicapacity, had only happened per incuriam, and from his having taken it for granted that she was not to decline accepting. See Tutor and Pupil.
