Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XV.
Of Sums Moveable notwithstanding of real Security.
Henderson v. Henderson's Relict
Date: 3 February 1631 Case No. No 85.
An executor confirmed a sum in a bond. Although heritable, being given up by the executor, he was found liable.
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Mr John Henderson, and umquhile James his brother, being confirmed executors to their umquhile sister, in which testament James gives up a debt of L. 500, addebted by himself to the defunct, to whom he was one of the two executors confirmed; and the said James being deceased, nothing being done before his decease upon the said testament, Mr John the other executor, pursues the relict of the said James, as executor to him, to pay the said sum; who alleging the said sum to be heritable, and so not to come under the testament to be confirmed, except the pursuer would otherwise instruct, than by the testament, that the said sum was confirmable; the Lords found, That this sum being given up by the executor himself, as a debt owing by him, he not making mention that he was owing it by bond, it could not be alleged by himself if he were living, nor now by his executors to be heritable, except that the excipient would qualify, and show that it were heritable; which if she did not, the Lords found the testament so purporting, given up by the debtor's self, ought to work against the defender, as it would have done against himself. And here it was questioned, if the whole sum would pertain to this pursuer, the sole executor surviving, the other not having executed before his decease, seeing it was alleged by this executor, that there needed no more execution thereof, he being executor, and also debtor, whereby it was in his own hands, and so the debt confounded for the equal half, as executor; but the pursuer insisted only for the one equal half thereof, and no further.
