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Though an executor so far acknowledged a creditor as to make a partial payment, this was not found to bar him from making payment to other creditors, and exhausting the testament thereby.
Fol. Dic. v. 1. p. 275. Durie.
*** See This case, No 27. p. 2190.
*** Spottiswood reports the same case:
Janet Telfer having pursued N. Moffat as executrix to her husband's bond, for payment to her of a sum of money, alleged, The testament was exhausted by decreets lawfully obtained by the defunct's creditors, and she had obtained decreet of exoneration thereupon. Replied, She was in pessima fide to seek any decreet of exoneration, unless the pursuer had been called thereunto, in respect that the defender could not but know her to be one of the defunct's creditors; because, since her husband's decease, the defender had paid annualrent for the said sum to the pursuer sundry years. Duplied, She was not obliged to know any; but they that had done most diligence behoved to be answered and obeyed by her; and if this pursuer were presently contending with the rest of the creditors, they would be preferred to her.——The Lords ordained the pursuer to dispute with the remanent creditors as if it were yet in seeking of the exoneration.
