The Lords preferred an executor-creditor to the donatar of the defunct's escheat, the confirmation being before the gift, and a decree against the defunct's debtors, obtained before the decree of declarator in the gift.
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Captain M'Raith, as executor to Sir John Kennedy, having confirmed certain bygone rents due by the tenants; and having obtained a decreet against the tenants for payment; which being suspended, and there being compearance made for William Kennedy of Menumisiam, who had obtained a gift of Sir John's escheat, and alleged that he ought to be preferred, because his gift was prior to the confirmation; and albeit Captain M'Raith had obtained a decreet against the tenants before William Kennedy had obtained declarator upon the gift, Captain M'Raith not having received payment, but the same being yet extant in the debtor's hands, the donatar ought to be preferred, as was decided in the case of Sir William Purves against Deans, 18th January 1678, voce Litigious.—Answered, That Captain M'Raith having done the first diligence, by confirming himself executor-creditor before the gift, and obtained decreet for payment before the donatar obtained a decreet of declarator, it ought to be preferred as is clear by several decisions; and particularly, the 24th February 1637, Pilmor against Gagie, No 39. p. 3644.; and the 19th February 1677, Glen against Home, No 41. p. 3645.; where the Lords found that a creditor was preferred to the donatar of the debtor's estate, upon an arrestment used after the rebellion, but before declarator, being for a debt contracted before the rebellion; and in this case Captain M'Raith's debt was prior to the debt upon which the denunciation proceeded.——The Lords preferred the executor, in respect his debt was prior to the debt in the horning, and a sentence prior.
Fol. Dic. v. 1. p. 256. Sir P. Home, MS. v. 2. No 646.
