If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.
Dame Margaret Preston v. The Executors of her Son
Date: 8 July 1634 Case No. No 74.
Every creditor may take decree against an executor, and the defence of exhaustion will be reserved contra executionem.
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Dame Margaret Preston pursuing the executors of umquhile John Hepburn her son, to warrant her from a debt decerned against her as executrix to her umquhile husband, Sir Robert Hepburn, and whereof the said umquhile John Hepburn should have relieved her said husband his father, the defender alleging, That the whole goods of the testament of the said umquhile John were exhausted, by sentences obtained by other creditors of the defunct's against them; this allegeance was repelled, and it was not found sufficient to liberate the executors, that sentences were obtained by other creditors against them, for as much as would exhaust the inventory of the testament, except also that payment had been made by the saids executors to the creditors, conform to their decreets; for, before payment the executors could not be exonered, and when this pursuer had recovered sentence, as the other creditors have done, the executors might convene them, or suspend all their sentences; in which process the creditors might dispute upon their preference, if there was not enough to pay them all, and then the executors could not be obliged, but secundum vires inventarii.
Act. Stuart.Alt.———.Clerk, Hay.
Fol. Dic. v. 1. p. 276. Durie, p. 724.
