In how far, and by what means, the executor is constituted proprietor.
Grĉme of Claverhouse v. -
Date: 6 November 1686 Case No. No 87.
A debt was assigned by an executor before he had obtained sentence for it. The assignation found good.
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William Gordon, second son to French, having assigned a debt confirmed by him in his father's testament, to his eldest brother the heir, before the cedent had obtained a sentence for it, and the assignee being forfeited for treason, Colonel Græme of Claverhouse, the donatar of his forfeiture, pursued the debtor for payment.
Alleged for the defender; 1mo, By our law executors cannot assign ante sententiam. 2do, The pursuer must confirm before sentence; and this defence being against the pursuer's title is not jus tertii to the defender.
Answered for the pursuer; The executors that have nudum officium cannot assign till sentence is obtained, till which time the testament is looked upon as non executum; yet the cedent here being executor qua nearest of kin, hæreditas est adita by confirmation in the name of himself, or any other executor, though a stranger; and his interest as nearest of kin, trasmits after the confirmation, as the right of legitim transmits before, or without any confirmation, albeit as to the point of execution there must be a new confirmation of non executa, when sentences are not recovered against debtors; and it may be debated, that as to the interest of nearest of kin, or legitim, there needs no confirmation quoad non executa, where the goods or debt were once confirmed, and the executor died before sentence, (though the custom of the Commissary court appoints confirmation of non executa in all cases) seeing the interest of nearest of kin is transmitted by confirmation; and an executor may receive the sums confirmed without sentence, if the debtor please, who will be effectually secured by the executor's discharge. 2do, It is jus tertii to the debtor to require the pursuer to confirm before sentence, seeing that defence is only competent to another executor or creditor of the defunct; and the Lords’ sentence will secure the debtor.
‘The Lords repelled both the defender's allegeances in respect of the answers.’
Fol. Dic. v. 1. p. 278. Harcarse, (Executry.) No 471. p. 128.
