Archibald Campbell v. Campbell of Monzie and Campbell of Achalader
1752.December. Case No. No. 41.
A deed of mortification for the use of the school-master of at parish, stands good though none of the trustees accept.
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Mr. Archibald Campbell, Minister at Weem, made a deed of mortification, in which he settled his funds upon five trustees, and their successors, for the use of the schoolmaster of Weem, and of other schoolmasters to be settled in the parish at the places therein named, the sums to be secured and employed in name and for the use of the schoolmasters; and the major part of the trustees are declared a quorum. Two of the trustees only having accepted and intromitted, the sums were claimed from them by the representatives of the mortifier, upon this ground, that the two accepting trustees, who are not a quorum of those named, having, for that reason, no power to act, the deed of mortification is void, and the subject must belong to the representatives of the mortifier, in the same manner as if there had been no such mortification.
In answer to this claim, it was observed by the two accepting trustees: 1mo, That the funds being settled by the mortifier upon certain persons, for the use and behoof of the schoolmasters, this assignation is absolute, and does not depend, more or less, upon the will of the trustees. Therefore, though they had all refused to accept, an action would lie against them at the instance of the schoolmaster of Weem, to denude in favours of other trustees who should be willing to accept. 2do, In general, with regard to a single act, to perform which a certain number of persons must concur, by the settlement, it may be true, that the act cannot be performed if one be wanting; but in a management which requires a course of time, the nomination of a quorum, if the contrary be not expressed, ought to be interpreted a quorum of those who accept or survive; for the management cannot stop after it is partly executed. The Lords sustained the deed of mortification; and it was the opinion of the Court, That such a deed must stand, though all the trustees should decline acceptance; in which case, the Court would name administrators.
