An Executor has the only Title to Intromit with the Subjects Confirmed.
Falconer v. Irvin
Date: 7 July 1625 Case No. No 27.
A bond being taken payable to husband and wife and longest liver of them, and the husband having died before the term of payment, it was found that the relict had no action against the debtor for her third. In a subsequent case, mentioned in this report, the contrary was found.
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In an action betwixt Falconer and Irvin, Falconer relict of umquhile —— Wishart, having pursued Irvin for registration of an obligation made of a sum, bearing to have been paid to her husband and her, and the longest liver of them two, at the term therein appointed; and in case of their decease, to the heirs therein nominate; in the which cause, notwithstanding of the tenor foresaid of the obligation, the Lords found, that the relict could not pursue for registration thereof, but that it came under her husband's testament, and so would pertain to his executors, against whom the relict had her action, for her part of the said sum, which would fall to her by the law, by her husband's decease, but that she had no action competent to her against the debtor, but only against the executors of her husband, albeit her husband died before the term of payment, whereby she alleged, that she had right to seek the sum, and to pursue for registration of the bond, she being that person contained in the bond, with her husband, to whom payment was contracted to be made, which was repelled by the Lords; and albeit the relict desired, that the Lords would grant her execution, for her own third, upon this obligation, to the which she restricted her pursuit, yet the Lords refused the same, and ordained her to seek the same from her husband's executors.
The contrary was done, July 21 1635, betwixt two parties, to which Hay was clerk, where execution was given to the relict, on a bond bearing the debtor to be obliged to pay the sum, to the husband, and his wife, and the longest liver of them two, at the term appointed, and in case of failzie, to pay annualrent to them; and the husband dying before the term, charges were sustained to the wife, for payment of the annual to her, during her lifetime, albeit the sum, as moveable, may appear to pertain to her husband's executors.
Act. Aiton.Alt. Hope & Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 273. Durie, p. 175.
