William Forbes, Esq of Callendar, v. The Trustees of the Earl of Galloway
Date: 2 February 1808 Case No. No. 2.
Circumstances in which the non-acceptance of a sine qua non did not render ineffectual the nomination of executors.
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On the 3d July 1804, the Earl of Galloway executed a trust-deed, wherein he “Gives, grants, and dispones to, and in favour of the said Ann, Countess of Galloway, my beloved wife, the Right Honourable Sir Archibald Macdonald, Lord Chief Baron of his Majesty's Court of Exchequer in England; the Honourable Sir William Honyman, one of the Senators of the College of Justice, and others, or to such of them as shall accept of the present trust, or the survivors or survivor of them, and such other person or persons as they or the survivors or survivor of them shall assume.”
By a subsequent clause the trustees are authorised to sell certain parts of the trust-estates for the discharge of debts, to borrow money, grant securities, and let leases. After prescribing the order in which the lands shall be sold, the deed grants power to the trustees “to nominate and appoint, by a writing under their hands, any person or persons whom they shall judge fit to be trustee or trustees, for the purposes herein mentioned, along with them, or after their decease.”
It then proceeds, “I do also hereby declare, that the majority of my said trustees, whether named in this deed afterward to be executed by me, or to be assumed into the management of this trust, in virtue of the powers above granted, and who shall accept as trustees, shall be a quorum; providing always, that the said Anne, Countess of Galloway, my beloved wife, shall be one of the said quorum, and sine qua non: And also declaring, that in case none of my said trustees other than the said Anne, Countess of Galloway, my beloved wife, shall accept of this trust, or, if after her death, there shall be only one accepting trustee, or the number of my said trustees shall be reduced to one, she the said Anne, Countess of Galloway, during her life, and such single trustee after her death, shall have full power to act as a quorum; and that every act and deed done by such quorum shall be equally valid and effectual as if done by my said whole trustees. And further, I do hereby nominate and appoint the said Anne, Countess of Galloway, and the other trustees before named, and the acceptors or acceptor, and the survivors or survivor of them, and such other person or persons as may, in virtue of the powers hereby conferred upon them, be assumed by them into this trust, or who may hereafter be appointed by me in manner foresaid, and their quorum, to be my sole executors and intromitters with my whole moveable and personal estate and effects,” &c.
In the clause in the deed containing the obligation upon the Earl and his heirs to infeft the trustees, the procuratory of resignation, and precept of sasine, the grantees are described as “the said Countess of Galloway, Sir Archibald Macdonald, Sir William Honyman,” &c.;—“And the acceptor or acceptors, survivors or survivor of them and to such other person or persons as they may assume into this trust, or as I may afterward appoint by a writing under my hand.”
The Earl of Galloway having died, four of the trustees nominated in this deed accepted, but the Countess of Galloway did not accept.
On the 5th April 1807, certain parts of the trust-estate were brought to public sale; and Mr. Forbes of Callender was a purchaser to a considerable amount.
A disposition was made out in name of the four accepting trustees, containing the concurrence and consent of the present Earl of Galloway, and of the Countess Dowager, and payment of the price was demanded.
Mr. Forbes, in a bill of suspension, maintained, that the profered disposition was not a regular, sufficient, and unchallengeable title, and that he was not bound to accept of it. That by the conception of the trust deed, the Countess Dowager was an indispensible member of the quorum, was a sine qua non, without whose concurrence as a trustee, the other members of the trust could not validly act. That her non-acceptance sopited the nomination, and some other mode must be adopted of investing the suspender with a sufficient title.
The Lord Ordinary reported the case to the Court; and, by their direction, 12th December 1807, refused the bill.
The Court were of opinion, that if the Countess Dowager had accepted, her consent, as sine qua non, would have been necessary to validate all the proceedings under the trust-deed; but by the terms and conception of the deed, it did not appear to have been the intention of the granter that her non-acceptance should dissolve the trust; and even if it had, the title would then have been in the present Earl, who concurs in the sale.
On advising a petition and answers, (2d February 1808), the Lords adhered.
Lord Ordinary, Hermand.Act. Thomas Thomson.Alt. Advocate.Jo. Smith, jun. W. S. and R. Aytoun, W. S. Agents.P. Clerk,
Fac. Coll. No. 27. p. 90.
