Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. II.
What Right go against Heirs.
Wallace v. Murray
Date: 14 December 1676 Case No. No 22.
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There being a pursuit at the instance of a Creditor against the Representatives of an intromitter with the debtor's goods, the Lords found, that the passive title of intromitter could not be sustained, after the intromitter's decease, to make him liable as universal intromitter; and yet sustained the same in quantum he was locupletatus; the pursuer, for the defender's farther security, confirming, before the extracting of the sentence, a testament as executor creditor to his debtor.
Reporter, Treasurer-depute.Clerk, Gibson.
Fol. Dic. v. 2. p. 74. Dirleton, No 404. p. 198.*** Gosford reports this case:
In a pursuit at Wallace's instance, as executor-creditor to Patrick Murray, against Margaret Murray his daughter, as representing him, which Patrick Murray, as vitious intromitter with the goods and gear of William Murray his brother, who was debtor to the pursuer; it was alleged for the defender, That esto she was representing her father, yet she could not in law be liable to the pursuer; 1st, because he being Commissary of Orkney, and dying there, his testament should have been confirmed in Orkney, the Commissaries of Edinburgh having no right to decern him executor-creditor, but the testament should have been confirmed by the Commissaries of Orkney within which diocess he died; 2do, Albeit the testament had been confirmed, yet there being no sentence recovered at the pursuer's instance against their father, as vitious intromitter with his brother's goods who was debtor, who might have defended himself, and cleared his intromission, that passive title being odious can never be transmitted against her as representing her father, who being but a minor, it is impossible that she can clear his intromission; and, therefore, it being the pursuer's own fault, who did not constitute the debt by a decreet, it were against all law and reason to make her liable passive to all her uncle's debts, whom she did not represent. It was replied to the 1st, That the pursuer did offer to confirm at Orkney, but the defunct, Patrick Murray, being the commissary himself, did obstruct the same, so that he was necessitated to apply himself to the Commissaries of Edinburgh, as the supreme commissariot, and, to take off the Commissaries of Orkney's prejudice, he was content to confirm there before sentence. It was replied to the 2d, That the defunct Commissary hindering the pursuer to confirm, and so to pursue himself as vitious intromitter, he dying in the mean time, there is no reason but that he should have that same action competent to him against his daughter, as his representative otherwise thereon the default of her father, who hindered the pursuit, he should be frustrate of his just debt, which were of a dangerous consequence, and yet his daughter should lucrari ejus dolo, and possess his whole estate.—The Lords, as to the first, sustained the testament confirmed by the Commissaries of Edinburgh, having no jurisdiction to confirm but in their own diocess; as to the second, they found it of a general concern, and did well consider the same, before interlocutor, seeing it was of great and universal concernment to make the representatives of any person liable passive for all debts contracted by another than the person whom they represent, which had no warrant by our law nor practique; but considering this case as singular, and that the defender's father did obstruct any legal procedure against himself, and died medio tempore, they found that the defender should only be liable in valorem with the father's actual and vitious intromission with the brother's goods, effeiring to the pursuer's debt, and in quantum the defunct was locupletior factus, and that his intromission could not be purged; but found, that there could be no ground to make her liable to all her uncle's creditors, as being a passive title transmissible, there being no diligence done by any other creditors to constitute the father debtor by decreet, upon that ground, whereby the general succession of all representatives and minors was salved, and yet, upon good reason, the pursuer's interest, who was not in culpa, preserved by the foresaid decreet.
