An executor pursued by a relict for her third, suspended, because the whole was exhausted. The reason repelled, being competent and omitted.
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In a suspension betwixt Crawfurd and Grier, wherein Grier being decerned by the Commissary of Aberdeen, as executor to his father, to pay to Crawfurd the defunct's relict her third part of the moveables, and the executor suspending, that the whole gear was exhausted by a sentence, recovered at the instance of a creditor of the defunct's, which extended to a greater quantity than all the defunct's goods extended to, so that there could be no third; this reason was not found relevant, but the relict's decreet for her third, notwithstanding of the debt, was found should have effect, in regard that the exception upon that debt was competent to have been proponed by the suspender before the sentence was obtained by the relict, and was then known to him; so that his omission then to propone the same was found a cause to exclude him now, that he could never propone any argument upon that debt, to stay the payment of the third to the relict; and this was the rather found, because the debt was owing by the defunct to this suspender's self, he being a bairn of the defunct's, begotten upon a prior wife, and having an obligation made to him by his father of a sum of money, which was the debt acclaimed, and which exhausted the gear confirmed, and to the which obligation and debt therein contained, he had made another of his brethren assignee, after litiscontestation was made in the relict's cause for her third, and which assignee had obtained sentence against the suspender before the relict's sentence; so that the exception upon the sentence for the debt being emergent since litiscontestation in the relict's cause, and being competent to have been proponed before the relict's sentence, the decreet for the debt being obtained before it, and being omitted to be proponed as said is by the executor, who might have proponed that exception upon that same debt, for retention of the goods for satisfying thereof, and so not proponing the same, that omission was found to exclude him therefrom in all time coming, although nothing could be said against the verity of the debt, or that it was not owing, and albeit the suspender also was a poor ignorant man, in whom ignorantia juris et in damno vitando is excusable; and the Lords understood, that the Commissaries of Edinburgh are ever in use to decide, that where an executor is confirmed, at the time of confirmation, if he as executor protests not that his accepting of the office be without prejudice of any debt owing to himself by the defunct, that the omitting to make such a protestation excludes him ever from seeking of that debt thereafter; which I think should not be sustained where the debt is true.
Act. Hay.Alt. Baird.Clerk, Hay.
Fol. Dic. v. 2. p. 208. Durie, p. 311.
