Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr Arthur Gordon
v.
The Laird of Drum

Date: 24 June 1671

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Mr Arthur Gordon, as assignee constitute by the executor of ——— Gordon, who had obtained decreet, against the Laird of Drum, for payment of the sum of 7000 merks, contained in his bond, granted to the defunct, to whom Mr Arthur's cedent and another brother were confirmed executors, and had obtained decreet against Drum, as conjunct executors; but, in respect that the other executor was dead, Mr Arthur, as having right from the surviving executor, pursued for the whole.

It was alleged, That the surviving executor had only right to the half of the sums confirmed; because, the testament being executed, by the decreet obtained at the instance of both the executors, the half belonged to the nearest of kin of the conjunct executor, who was dead.

It was replied, That a testament cannot be said to be executed by a decreet, unless payment had been made; which is the opinion of Sir Thomas Hope, in his Treatise, that instrumentum non est executum but by intromission of the executor; and therefore, jure accretionis, the defunct's part did belong to the surviving executor.

The Lords did sustain the defence, notwithstanding of the reply, and found, That an executor, either sole or conjunct, obtaining a decreet for payment to him of the defunct's debt, the testament is fully executed, and his creditors may affect the same; or, if he die, it is in bonis defuncti, and belongs to the nearest of kin: and that the naked office of executry does only accrue to the surviving executor; as it was found in a case of the Lord Southwall, who, as creditor, had arrested the executor's goods, who had obtained sentence, and [was] preferred, in respect of his diligence, to the proper creditors of the defunct, to whom the executor was confirmed; albeit the competition was for the debts belonging to the defunct, for which the executor had gotten decreet.

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