Exhaustion of Executry; - Challenge on the Head of Inhibition, - how Proponable.
Inglis v. Bell
Date: 24 January 1639 Case No. No 73.
A party sued an executor, who had intromitted beyond what he had given up in testament. Found not necessary for the pursuer to confirm ad omissa.
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Margaret Inglis, relict of umquhile Alexander Douglas macer, pursues Patrick Bell, provost of Glasgow, as executor confirmed to James Inglis, who was the pursuer's debtor, for payment of the sums addebted to her by the said James. And the said Patrick alleging, That the testament was totally exhausted by sentences, obtained by lawful creditors, to whom he had made payment; the pursuer replying, That the defender had intromitted with as much more of the defunct's goods as would pay her, by and attour the goods confirmed, and which she referred to his oath of verity simpliciter;—the defender duplied, That an executor is not obliged ultra vires inventarii, and if he have intromitted with any further, the pursuer may take a dative ad omissa, whereupon being pursued, he will be answerable. The Lords repelled the allegeance in respect of the reply, which the Lords sustained, specially being referred to the defender's own oath; and found no necessity that the pursuer should be put to take a dative ad omissa, but sustained the trial thereof in this same process to be proven, as said is. See Executor.—Service and Confirmation.
