Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Gordon
v.
Laird of Meldrum

Date: 27 June 1628

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Gordon against L. Meldrum. The executors of a wife convening the executors to the husband of that wife, for payment of the wife's part contained in the testament, which was given up and confirmed to pertain to her and her husband the time of her decease, she deceasing before her husband;—the defenders alleging that defalcation ought to be made of the debts owing by her husband at the time of her decease, which the executors had paid sensine;—the Lords found this defalcation reasonable, and allowed the said payment; and found that the executors needed not to abide any sentence for the said debts to have been obtained by the defunct's creditors against them, but that they might have paid the same without sentence, they proving the debts to have been truly owing. And albeit there had been no payment, nor yet sentence, yet they found the defalcation relevant, bearing that the defunct was owing such particular debts, which being proven, the same ought to be taken off the gear, before the relict or her executors could claim any of the gear, for the relict's portion thereof.

Act. Baird. Alt. Burnet, major. Gibson, Clerk.

Page 377.