Executors-creditors having given up inventory far exceeding their own debt, and being confirmed, found not liable for the superplus of the inventory not intromitted with, or to shew diligence against the debtors, but only cedere actionem to another creditor or nearest of kin.
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The said Agnes Home being pursued as executrix-creditrix to her deceased husband, upon this ground, That she had given up an inventory of more than had satisfied her own debt, and therefore quoad the superplus should be liable to make payment, or to instruct that she had done sufficient diligence against the debtors; —it was alleged for her, That albeit executors nominate or dative are liable for the whole inventory, or to instruct that-they had done diligence; yet executors-creditors are not so liable, because they only confirming then that they may be satisfied of their own debt; as to any superplus of the inventory, they are only obliged cedere actionem, to the effect any other creditor, or nearest of kin, may pursue. —It was replied, That all executors, finding caution to make furthcoming the inventory, are alike obliged to account for the same, or to show diligence; and if it were not so, executors having the only title to pursue debtors, and so hindering all other creditors or nearest of kin to pursue, in law and reason they ought to do diligence against all debtors; and if they become insolvent medio tempore, it is just that they should be liable. ——The Lords did sustain the defence, and found, That where there was no executor nominate or dative confirmed, that creditors were necessitated to confirm only ad hunc effectum, that they might have a legal title in their person to pursue for payment of their own debt, and that whensoever they were paid, any other creditor or nearest of kin might force them cedere actionem, which was an ordinary remedy in law against their further intromission; that therefore they should not be liable to do diligence as to the superplus of the inventory more than paid their own debt. And in this process there being produced contrary practics; one in anno 1667 against the executors-creditors, finding them liable to do diligence in a case Bisket against ——*, and Hog against Niven, voce Implied Discharge and Renunciation, where it was found, that executors having no benefit but medium officium, they were not obliged to pursue the debtors upon their own charges, but it was sufficient to assign; the Lords having reasoned long amongst themselves, and resolving to make this a practic in future, decerned ut supra.
Fol. Dic. v. 1. p. 240. Gosford, MS. No 381. p. 189.
