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.
Alexander Downy v. Robert Young
Date: 17 November 1666 Case No. No 77.
Found as above.
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Umquhile Alexander Downy granted an assignation to his oye, Alexander Downy, of two bonds, who finding that after his goodsire's decease, Mr John Hay was confirmed executor to his goodsire, and had given up these bonds in his inventory, but had not recovered payment, he confirms himself executor, ad non executa, to his goodsire, and pursues the debtors for payment of the bonds. Compearance is made for Robert Young, who alleges, That he is executor dative to Mr John Hay, who executed Downy's testament, by obtaining sentence for payment of these bonds; so that the bonds were no more in bonis of Alexander Downy, but of Mr John Hay; and that the testament being executed by decreet there could be no executor ad non executa to Downy the first defunct. It was answered, That the testament was not executed by a decreet, unless the executor had obtained payment; especially where the executor was a mere stranger, and was neither nearest of kin, creditor, nor legatar.
The Lords found the testament of Downy executed by Hay, by the sentence obtained in Hay's name; and therefore found that Alexander Downy, the oye, his confirmation as executor ad non executa, was null.
It was further alleged, That Downy being not only executor, but assignee by his goodsire, the assignation, though it had been but a legacy, would have been sufficient against Mr John Hay, who is the cedent's executor; and therefore is also sufficient against Young, who is the executor's executor, and so represents the first defunct, Downy the cedent. It was answered, That Young was not only legitimo modo the executor, but he is also creditor of the first defunct, Downy, in so far as he is donatar of the escheat of John Hilston, and thereupon has obtained declarator, and so is in the place of John Hilston, to whom umquhile Alexander Downy was debtor, by his ticket produced, whereby Downy acknowleges that he had in his hands goods worth L. 6000 belonging to him and Hilston, in co-partnery, and obliged him to be countable therefor; which is anterior to the assignation granted to Downy's own oye for love and favour; whereupon he hath reduction depending against the assignation, as in fraudem creditorum. It was answered, that the ticket, in relation to the copartnery, was not liquid, bearing only an obligement to be countable, with express exception of desperate debts, and others.
The Lords found, that in respect the debt was not liquid, Downy the assignee ought to be preferred, and get payment, but ordained him to find caution, that in case Young prevailed, he should refund.
Fol. Dic. v. 1. p. 277. Stair, v. 1. p. 405.*** Newbyth reports the same case:
In a competition of rights to two bonds granted to umquhile Alexander Downie, and which competition was debated betwixt Robert Young and Alexander Downie, son to the defunct; and it being contraverted in this process, when, and at what time, a testament was said to be sufficiently executed; The Lords found that a testament was sufficiently executed, by the executor's recovering of decreets for the debts therein confirmed, so that thereby the same came to be in bonis executoris.
