Scottish Court of Session Decisions

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

James Crawford
v.
Helen Watson

Date: 29 June 1676

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Helen Watson, being confirmed executrix-creditor to her husband, Alexander Bell, by her contract of marriage; but conjunctly with the said James Crawford, and some others, creditors of her defunct husband, was pursued by Crawford, as vitious intromissatrix, in so far as she had intromitted with more than her just proportion of the moveables; they being divided amongst the whole creditors confirmed.

It was alleged, That, in the confirmation by the commissaries, it was declared, that notwithstanding they were all conjunct executors-creditors, yet it was with that express quality, that she should have the preference, in so far as she was executrix by her contract of marriage; which gave a right to her whole intromission, not exceeding the same.

It was replied, That the commissaries could give no such privilege by their confirmation; their power being only to grant the title and office of executrix; but without a process, could not prefer one creditor to another.

The Lords found, that the relict having intromitted by virtue of a title, albeit the commissaries, by their confirmation, could not prefer her; yet, she being a privileged creditor by law, as to the debt due by the contract of marriage, as she would be preferred in a double poinding, she might so found a just defence against this pursuer, upon the foresaid privilege.

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