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.
Mr Arthur Gordon v. Laird of Drum
Date: 22 June 1671 Case No. No 78.
Found the reverse of Menzies against Drum, No 75. p. 3881.
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Mr Arthur Gordon, as assignee to a decreet recovered against the Laird of Drum, charges him thereupon. He suspends on this reason, that the debt being originally due to a defunct, his two executors nominate recovered the decreet, and the one only assigned the whole to Mr Arthur, whereby he can only have right to the half. It was answered, That the other executor being dead before the assignation, the office accresced to the survivor, who might uplift all that was in bonis defuncti, not uplifted. It was answered, That this debt was no more in bonis defuncti, but being established in the executor's person by sentence, testamentum fuit executum, and the deceased executor's half behoved to belong to his executors, and not to accresce.
