Vitious Intromission Purged by Confirmation, or by declarator of escheat.
Lindsay's Relict v. Elleis
Date: 21 March 1628 Case No. No 194.
Where one intromitted, who was named executor by the defunct, vitiosity was purged by a confirmation post litem motam, altho' after year and day.
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In a double poinding by the Relict of Bernard Lindsay, against Patrick Elleis and Sir John Dalmahoy, and certain other creditors of her umquhile husband, Patrick Elleis having pursued the relict for payment of his debt, as intromissatrix with her husband's gear; after the intenting of the which cause, she having confirmed herself executrix to him, albeit it was two years after her husband's decease, yet the action was only sustained against her as executrix, that she might have beneficium inventarii; and sicklike during this dependence, after Patrick Elleis's citation, the Laird of Dalmahoy her son-in-law, being also a creditor, intented action, and obtained decreet against her, conform whereto she made payment to him, and which exhausted the goods contained in the testament; in respect whereof she alleged she should be assoilzied from Patrick Elleis's pursuit;—this was found relevant, and the payment made by her allowed, and the Laird of Dalmahoy preferred; albeit Patrick Elleis replied, That he ought to be preferred, or at least should come in with other creditors to be equally answered, seeing he was anterior in diligence, and during his dependence by favour of the relict, she had given way to her good-son's process, who had intented this action since he bad cited her, and had keeped his process in her procurator's hands, while the other had passed through his decreet by collusion betwixt them; which fraud ought not to be sustained. This reply was repelled, and the creditor, posterior in diligence as said is, was preferred.
Act. Learmonth.Alt. Belshes.
Fol. Dic. v. 2. p. 45. Durie, p. 365.
