Scottish Court of Session Decisions

Subject_1 CREDITORS OF A DEFUNCT.
Subject_2 SECT. I.

Decisions upon Act 24th, Parliament 1661.

John Hall, late Bailie of Edinburgh, and other Creditors of the Relict of James Masterton,
v.
Margaret Thomson, and Other Creditors of the said James Masterton

Date: 29 July 1675
Case No. No 3.

Found as above.

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In a double poinding, raised at the instance of Stennismiln, in whose hands the whole goods and in-sight plenishing which were in the house, and possessed by Alice Thin, relict of the said James Masterton, were sequestrate, until he should be first paid of the house mail;—it was alleged for the Creditors of the husband, James Masterton, That they ought to be preferred, because he had disponed his whole goods and moveables, in favours of the said Alice, his relict, with burden of his debts; and therefore, whatsoever goods she had by the same disposition, it was really affected with his creditors debts.—It was answered and alleged for the Creditors of the relict, That she never accepted of any such disposition, nor made use thereof; but on the contrary, any intromission she had was as executrix to her husband, whereby the property of the goods became her's, and she might dispose thereof ; likeas she did dispose of the same in favours of Margaret Masterton, her sister-in-law, with the burden of her proper debts; and so her creditors had best right thereto.—The Lords did find, That if the said Alice Thin had only right as executrix, that the proper goods and gear which belonged to her husband, and were intromitted with by her, being yet extant, would belong to the husband's creditors; and so preferred them, conform to a former practick in the case of Ley, No 1. p. 3123. where the Lords did ordain it to be a practick, that the creditor of the defunct should be preferred to the creditors of the executrix as to his goods; but as to any goods that were acquired by the relict herself, after the husband's decease, and did only appertain to her, and were never possessed in common, They did prefer the relict's own creditors to the creditors of the husband, who had never done any diligence to affect the same, nor had recovered decreet against the relict as executrix, to constitute her debtor during her lifetime.

Fol. Dic. v. 1. p. 206. Gosford, MS. No 796.