If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.
Beck v. Crawford
Date: 6 December 1693 Case No. No 82.
A co-executor dying before sentence, the office accresses to the surviving executor. See, No 69. p. 3877.
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In Margaret Beck's process against Crawford of Drumsuy, it was objected by him, that she and her sister being confirmed executors to their father and mother, pendente lite, the other sister died, and so Margaret the survivor could only insist for the half, and accordingly she had been ordained to confirm the other half before extract. The Lords found there was no need of confirmation in this case; but that the testament not being executed by a decreet, nor the dominion of the goods yet established in the executor's person, the office and right accresced to her jure sanguinis as the nearest and as executor; and was so found, Bell against Wilkie voce Nearest of Kin. The second objection was, that she was not authorised, seeing one of her two curators was dead. The Lords sustained the process at the instance of the tutor on life.
Fol. Dic. v. 1. p. 277. Fountainhall, v. 1. p. 576.
