Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. VI.
Intromitters with the Defunct's effects may be pursued directly without Confirmation.
Schaw v. Auchinleck
Date: 5 February 1623 Case No. No. 45.
Found, that a relict intromitting with some things omitted in the defunct's testament, might be pursued directly for the same by the creditors, without either first insisting against the executors confirmed, or take a dative ad omissa.
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In an action Schaw against Auchinleck, the Lords sustained the action against the relict of the defunct, who was convened as intromissatrix with certain particular goods of the defunct, to make the goods intromitted with by her forthcoming to one of the defunct's creditors, notwithstanding that the relict alleged, that there were executors confirmed, who ought to be convened for the defunct's debts, and to which executors she ought only to be accountable for her intromission: But the pursuer replied, that she might be pursued for that particular libelled wherewith she intromitted, seeing it was not contained in the defunct's confirmed testament: She duplied, that she could not be convened therefore by this manner of pursuit, but any having right thereto, as omitted out of the testament, and obtaining a dative thereof, might pursue therefore, to whom she should be answerable as accords. This allegeance was repelled, and the action sustained against the relict for her intromission, seeing the testament wherein the bairns are confirmed executors, was given, up by herself, and that her omission to give up the particular goods of the defunct, which was fraudulently done by her, ought not to be profitable to her, nor prejudicial to the creditors, and found in respect of her fraudulent omission, that there was no necessity to seek a dative ad omissa.
Act. Mowat.Alt. Hamilton.Clerk, Gibson.
Fol. Dic. v. 2. p. 369. Durie, p. 44.*** Haddington reports this case:
In an action pursued against Pitoddie and some other vassals, as intromitters with the goods of defunct, the defenders excepted no process, because there was a testament confirmed before the intenting of this cause. It was replied, That the confirmation could not relieve the mother, who, giving up the goods and debts for her bairns, minors, had omitted above the worth of a thousand pounds of goods, wherewith she had intromitted, and so her intromission was not purged sua culpa: In respect of which reply, the Lords sustained the action.
