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.
William Menzies v. Laird of Drum
Date: 25 January 1665 Case No. No 75.
Two execucutors obtained decree against a debtor of the defunct; one of the executors died, and the other having charged for the whole debt, the Lords sustained the charge. See No 78. p. 3884.
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William Menzies, as executor to Alexander Menzies, and umquhile Margaret Gordon the other executor; having obtained decreet against the Laird of Drum, for 8000 merks, the said Margaret being dead, William charges for the Whole: Margaret having died at the horn, compearance is made for the donatar. It was alleged for Drum, that he could not be convened at the instance of this pursuer, Without concourse of the other executor, or some to represent her, had been called; for they might have alleged, that this charger is satisfied of the half of his executry.
‘The Lords found, that seeing the testament was executed by a sentence; the other executor needed not be called.’
2dly, Drum alleged, That he could not be liable to this executor, but for the half. It was alleged for the donatar, that he craved preference for the other half. It was answered, that the donatar could have no interest, because the sum was heritable. It was answered, that albeit it was heritable, yet it became moveable, by the executors taking a decreet therefor, in the same case as if requisition had been used.
In this the Lords did not decide, some being of opinion, that it was moveable, others contrary; because an executor being but a successor, as a decreet of registration, or transference, would not change the nature of the first bond, so neither would this decreet.
