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This cause is mentioned March 8. 1631, voce Executor, wherein the pursuit being moved at the instance of the executor dative, decerned and confirmed ad omissa et male appretiata; and the defender alleging, that no process ought to be granted upon the confirmed testament dative produced, because the principal executor, confirmed in the principal testament, was not summoned, nor called to hear and see an executor dative given and decerned, as ought to have been done, when the commissary decerned the pursuer executor dative;—The Lords found, the Commissaries could not decern executors dative ad omissa et male appretiata, except the principal executor had been first cited thereto, and that such acts cannot be done, neither are they in use to be done, without such preceding citation; but, because the decreet dative was not produced for the pursuer's title in this pursuit, but only the testament dative confirmed, they found this pursuit instructed sufficiently by this testament, and that it was not necessary to produce the decreet, decerning him executor, nor to reply, that the principal executor was cited thereto; but if the defender would produce the decreet dative himself, whereby it might be known, if he was cited or not, they would consider thereof, and have respect to the necessity of the citation of the principal executor.
Fol. Dic. v. 1. p. 133. Durie, p. 581.
*** See The same found in Lees against Dinwoodie, 10th December 1707, Forbes, p. 206. voce Executor.
