Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. V.
Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Procurator-fiscal of the Commissariot of Edinburgh v. Thomas Fairholm
Date: 23 June 1665 Case No. No. 32.
Confirmation found necessary, though there was a disposition omnium bonorum.
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Thomas Fairholm being charged to give up an inventory of the goods and gear pertaining to umquhile Alexander Deninstoun, whose daughter he had married, he suspends, on this reason, that the defunct had granted a disposition to one of his daughters of his hail moveable goods and sums of money, so that he had nothing the time of his death, and there needed no confirmation, but he might lawfully possess by virtue of his disposition; and there was no law to force persons, in such a case, to confirm, neither had it ever been sustained by the Lords. It was answered, That it was juris publici to have the goods of defuncts confirmed, that nearest of kin, children, creditors, and legatars, might know the condition thereof; and this defunct's moveables, albeit disponed, yet not delivered, remained in bonis defuncti, and so behoved to be confirmed.
The Lords having read the disposition, and finding it to be general, omnium bonorum, that he had, or should have, the time of his death, and there being nothing alleged of any onerous cause, or that it was before his sickness, albeit the case was new, yet they found there was necessity of confirmation in this case; but if it had been a disposition only of special things, as bonds or goods, or had been for any onerous cause, or had been made in liege pousti, and any symbolical delivery, the Lords were not so clear in it, but resolved to hear such cases in their own presence, when they should occur.
Fol. Dic. v. 2. p. 369. Stair, v. 1. p. 286.*** Gilmour reports this case:
In a suspension raised at the instance of certain persons, against the procurator fiscal of the commissariot of Edinburgh, there was a reason, bearing, that the suspender was not obliged to confirm the defunct's moveables, because they were all disponed to him in the defunct's life; and as the disposition would exclude any other executor, if he had confirmed the goods, so ought it to secure the suspender against the fiscal. It was answered, That the defunct remained in possession all his time, and if such a disposition should be sustained to exclude confirmation, then not only should all confirmation of testaments be evited, but also creditors should be prejudged by relicts and others, whom it concerns to know the value of the defunct's goods, by giving up inventory and confirming, notwithstanding of any such pretended disposition whereof there may be any just ground of quarrel.
The Lords found the letters orderly proceeded, notwithstanding of the said disposition, and ordained the suspender to confirm.
