Vitious Intromission Purged by Confirmation, or by declarator of escheat.
James Alexander v. Katharine Liston
Date: 3 July 1701 Case No. No 205.
Found in conformity with the above.
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Katharine Liston, relict of William Peat, being pursued by James Alexander, on the passive titles, for payment of a debt of her husband's, before the Commissaries of Edinburgh, she raised an advocation, on this reason, That the Commissaries had repelled this defence proponed for her, that she could not be vitious intromitter, because she had confirmed herself exeutor within the year after her husband's decease, and that in respect of this answer, that she never offered to confirm till after citation at the pursuer's instance, and so that could never purge the vitiosity of her prior intromission.—The Lords considered, that year and day was allowed by our law for discovering the defunct's estate, and making inventory, and that diligence by the creditors before that was nimious; and therefore, though they should prevent the confirmation by intenting a process, yet if the confirmation were expede within the year, it would save this odious passive title; and it has been oft so decided, 24th January 1628, Aldy contra Gray, No 193. p. 9866.; March 21. 1628, Eleis contra Lindsay, No 194. p. 9868.; and 28th January 1663, Stevenson contra Ker, No 201. p. 9873 where they were found in such cases to be only liable secundum vires inventarii; and Stair is of the same opinion, B. 3. T. 9. It was alleged here, That if she had only made use of the goods within the year for preservation, or custodiæ causa, it might have excused, but she had sold and disposed on some of them, which the Lords did not regard, because it was for the necessary maintenance of the family, and for payment of the rent of the room laboured by her husband; and therefore found the Commissaries had judged wrong, and advocated the cause to themselves.
Fol. Dic. v. 2. p. 45. Fountainhall, v. 2. p. 117.
