An Executor has the only Title to Intromit with the Subjects Confirmed.
L of Dunduff v. L of Craigie.
Date: 13 March 1612 Case No. No 23.
The relict has no action against the defunct's debtors for her third; she must pursue the executors, or if there are no executors, she must confirm herself executrix-creditrix. See No 30. p. 3848.
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The Laird of Dunduff, as executor nominated by the young Lady Craigie, and having licence, pursued the auld Laird of Craigie for the third of such debts and sums of money as were owing to the young Laird of Craigie, her first husband, to the third whereof she had right, as his relict. It was alleged, that she could have no process, in respect young Craigie's testament was not confirmed. So the pursuer answered, that he could not be prejudged by the not confirmation of young Craigie's testament, seeing the delay thereof proceeded not of her default, but by the defender old Craigie, who was tutor to his oyes (grandchildren) who should confirm their umquhile father's testament. Nevertheless The Lords considering that the relict could fall nothing by her defunct husband, but the third of his free gear, which could not be known but by confirmation of her husband's testament, that she behoved to urge the confirmation thereof; and albeit she might have retention of her umquhile husband's goods, being in her hands for her third thereof, yet she could not have action for her third of the goods against any other, till the testament was confirmed.
