Where the executor has been confirmed. - Where the party died at the horn:
Kneeland v. Baillie's Relict
Date: 13 February 1627 Case No. No 167.
Found in conformity with Johnston against Ker, supra.
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In an action for registration of a bond, by one Kneeland against the Relict of Baillie, who was maker of the bond, she being convened as intromissatrix with the defunct's goods, the Lords sustained the action against her as intromissatrix notwithstanding that she alleged, That there was executors confirmed to the defunct long before the intenting of this cause; seeing the bairn was confirmed executor, and the testament was given up by herself, and that she made faith, and caused find caution in the testament; and that the particulars which were condescended on to have been intromitted with by the defender, before the said confirmation, were not given up in testament; which neither being given up, nor eiked since, discovered a fraud upon her part, and so the action was sustained against her hoc nomine; and found it not necessary to put the pursuer to take a dative ad omissa; also they found, that the said intromission being proven against her, it should import decreet against her as universal intromissatrix, and for payment of the whole debt; and not to that effect allenarly, to make the goods intromited with furthcoming to the pursuer pro tanto, for payment so far as the said goods would amount to; but that, albeit the same could not satisfy the whole debt, yet that she should pay the same as universal intromissatrix, in respect of her foresaid fraudulent omission to give up the same.
Act. ——.Alt. Sandilands.Clerk, Gibson.
Fol. Dic. v. 2. p. 42. Durie, p. 272.*** Spottiswood reports this case:
A relict being convened as intromissatrix with her husband's goods and gear, alleged, No process against her, because she offered to prove that there were executors confirmed before the intenting of the cause. Replied, That he ought to have process against her notwithstanding, because he offered him to prove she had intromitted with sundry particulars given in ticket, besides what was given up in testament. Duplied, Let him take a dative ad omissa; for, as for her intromission, she was countable to the executors.——The Lords found process against the relict as universal intromissatrix, in odium fraudis et perjurii, in giving up of the inventory.
