Vitious Intromission Purged by Confirmation, or by declarator of escheat.
Maxwell v. La Stanlie.
Date: 28 March 1632 Case No. No 198.
A relict being sued for vitious intromission the defence was sustained, that there was an executor confirmed, altho' some particulars she had intromitted with were omitted in the inventory, but she was required to account for her intromissions, so far as not contained in the confirmed testament, without necessity upon the creditor to take a dative ad omissa.
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The relict of L. Stanlie being convened by Margaret Maxwell, one of his daughters, as intromissatrix with her husband's goods, to pay some debt to her; and the relict alleging, That one of the defunct's sons was executor confirmed, and who ought to be answerable to the creditors, and who had found responsal caution at the confirmation of the testament; and the pursuer replying upon the defender's fraud, in confirming of a minor, especially seeing herself was nominated executrix by the defunct's self; likeas she intromitted with her husband's goods before she confirmed the minor; as also, she hath intromited with many other particulars (whereon the pursuer condescended) beside and attour the goods confirmed, whereby she was in dolo, and so ought to be liable to the pursuer as universal intromissatrix; and the defender duplying, That it was lawful to her to accept or renounce to be executrix, albeit she had been nominated by the defunct, seeing the confirming of another, where there is also sufficient caution, is no more prejudicial to the creditors than if she had been confirmed, for the confirmed goods will be made furthcoming to the creditors; and her alleged further intromission with goods omitted, unconfirmed, cannot make her universal intromissatrix, to make her so liable for debts of her husband's, amounting to greater sums than either she is worth, or all her husband's own estate might pay; but the most that thereby can result on her alleged omission, is to take a dative ad omissa: — The Lords, notwithstanding that there were executors confirmed, and not-theless of the allegeance foresaid, sustained the action against the defender as intromissatrix, without necessity to take a dative ad omissa ad hunc effectum, only to infer sentence against her to make the particulars, wherewith she shall be proven to have intromitted, besides the goods confirmed, furthcoming to the pursuer for her debt allenarly, and not to make her liable as universal intrommissatrix thereby, either to his creditor, or to any other of the defunct's creditors, if the intromission to be proven shall not be found to be so much as will pay the debt; and respected not the reply to make her further liable.
Fol. Dic. v. 2. p. 45. Durie, p. 634.*** Spottiswood reports this case:
In an action pursued by Margaret Maxwell against the Lady Stanly, as universal intromissatrix with her husband's gear, notwithstanding that the defender had given up inventory, and made faith thereon in name of her son, whom she had confirmed executor, and that further intromission was offered to be proved upon her than was given up; yet the Lords did sustain action against her as universal intromissatrix, only to infer payment for as much more as should be proved against her.
