An executor creditor found liable for funeral charges and servants wages, as being preferable to his awn debt.
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David Crawford having obtained decreet before the Commissary of Hamilton against Hutton, ‘as intromitter with the defunct's goods,’ for payment of the defunct's funeral charges and servants fees, and some furnishing to the defunct; Hutton suspends on these reasons; 1mo, That he is executor-creditor, and is preferable for his own debt to the charger; 2do, That the decreet is null, the quantities being proved by the charger's oath. It was answered, That funeral charges and servants fees are privileged debts, preferable to all other creditors, whether they confirm themselves executors or not; and as to the probation, the decreet bears, ‘That there were funeral charges expended and servants fees,’ and the oath in supplement is only taken for the quantities, which cannot any otherways be known but by the expender.
The Lords preferred the funeral expenses and a year's fees of the servants, which were current at the defunct's death, and the term not come, unless the suspender instructed that the servants were only feed for half years, in which case only they preferred the current term; but as to the other furnishing, preferred the executor-creditor, and found him liable for the superplus, if any were.
Fol. Dic. v. 2. p. 176. Stair, v. 2. p. 805.*** Fountainhall reports this case:
David Crawfurd against Arthur Hutton in Hamilton; the Lords found Crawfurd having debursed the funeral charges and servants fees, he ought to be preferred, quoad these privileged debts, to the said Alexander Hutton, though he had confirmed himself executor-creditor for a just debt owing to himself; though some thought servants fees were only privileged for half a year's fee and no more, because they use to be paid termly; yet the words of the interlocutor are, “they prefer the charger, and find the executor-creditor who suspends, liable for the funeral expenses, and for the servants fees for a whole year, unless the executor-creditor will prove that the servants were feed termly; and find the suspender liable for the other grounds of debt certained in the decreet obtained against him before the Commissary of Glasgow, and charged on, in so far as the sum confirmed will extended to, after the executor hath retained satisfaction to himself of the debts for which he is confirmed executor-creditor.’, And as to the reason against the probation used in that decreet, viz. that the Commissary took the cedent's oath of supplement to prove the particulars of the furnishings, it being only proved in general by witnesses that they were in use to furnish, which (they alleged) was illegal, and to make them judges in re propria; “the Lords repelled the same, and found the decreet sufficiently proved; there being no other possible way of probation to be got in such cases.” That funerals are a preferable debt in law, vide vinn. ad S. S. 3. Instit. Ad 1. falcid; & 1. penult. D. De religios.
