A creditor confirmed himself executor dative to his deceased debtor, and obtained decree against the defunct's debtors, and payment from them. The donatar of the defunct's escheat pursued a special declarator, and his gift being posterior to the executor's decree and recovery of payment, the Lords ordained the goods to be divided pro rata.
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William Blair dies at the horn, at the young Laird of Lees' instance, who had paid 500 merks as cautioner for him, and for recovery of his just debt, takes the gift of the defunct's escheat; but, before he obtained the gift, Thomas Lindsay merchant, to whom the said umquhile William Blair was addebted, confirms himself executor dative to the defunct for payment of the debts, and obtains both sentence and payment before young Lees obtained the gift of escheat; but when young Lees pursues a special declarator, compears the said Thomas Lindsay for his interest, and alleges no declarator for the goods which he had recovered as executor, and had got payment thereof before the gift, and seeing he was a just creditor, and ought to be preferred in respect of his diligence.—To which it was replied, That the defender deceasing rebel, could have no executor; and seeing, immediately after his rebellion, jus fuit acquisitum domino regi; and the pursuer was not only donatar, but creditor also, he ought to be preferred.——The Lords ordained the goods to be divided pro rata, in respect the defender had got payment, and it was hard to take all back from him.
