The appretiation in the confirmed testament may be corrected by a confirmation ad male appretiata, or by proof of higher value. - License to pursue.
Gourlay v. -
Date: 24 November 1627 Case No. No 60.
An executor confirmed a coffer in the hands of a third person, to a certain value. Having pursued the holder for exhibition, he offered to pay the value confirmed, and insisted, if the executor allege it to be worth more, he must add the same to the testament. It was found, that the executor was not bound to add the greater price till the coffer was produced.
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In a suspension betwixt Gourlay in Leith and ———, anent the exhibition of a coffer, for the which there was decreet given at the instance of the charger, as executor confirmed to the defunct; and in the testament among the inventory of the goods, the coffer being given up by the executor at the estimation and value of 100 merks; the suspender offering to pay that 100 merks, the price put by the executor's self thereon in the said confirmed testament; whereby he alleged he ought to be freed of exhibition of the coffer, specially seeing it was his own estimation, confirmed and sworn with the rest of the inventory the time of the confirmation; and, if he would allege the same to be of any more worth, he ought to add the same to the testament, and confirm it before he can be heard to pursue or seek the samen; and there is place to the executor ad omissa, or male appretiata, to acclaim the same, and not to this executor, who hath given up the foresaid price;——The Lords found, that the executor confirmed, notwithstanding of his up-giving of the coffer at the foresaid price, might seek exhibition of the coffer, and was not holden to accept the said price confirmed in case the coffer be yet extant; and that the executor needed not to add the greater price to the testament, to the effect the same should be confirmed, until the time the same were first exhibit, that he might know at what avail and further price the same should be confirmed; and, therefore, that the defender was not freed by the offer of the price confirmed, but was holden to exhibit the coffer, seeing it was not controverted by him, but that it was extant.
Act. Hope.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 275. Durie, p. 316.
