A brother having confirmed himself executor qua nearest of kin, neglecting a sister, and having ex preposito omitted several articles out of the inventory, the Lords found he had amitted the benefit of having any share of the goods so fraudulently omitted by him, and that they fell to the sister.
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James and John Robertsons in Dumfries having confirmed themselves executors to Andrew their brother, and neglected Agnes Robertson their sister, who had an equal third share with them, and having omitted several parcels of goods and debts belonging to the defunct, the said Agnes, and William Purdy her husband, confirm themselves executors-dative ad omissa et male appretiata, and pursue John Robertson as the intromitter. The Lords found sundry qualifications of fraud and dole on the said John's part, and particularly that he had kept the said Purdy in prison two years for a debt, when he was more than paid in his own hand, only to force him to quit his right to a small and inconsiderable thing: But the question arose, What should be the legal penalty of this fraudulent concealment? Some proposed it should be the forfeiture of his share in these omitted et male appretiate goods, and that they should in solidum accresce and belong to the sister; and my Lord Dirleton, in his Dubia et Questiones, seems to incline to this opinion, voce Executor ad omissa et male appretiata. Others thought there was neither law nor decision to warrant this, et erubescimus sine legi loqui; and that it were too severe a certification, but he might be punished by the loss of the expenses of confirmation, and on the ingathering of the inventory of the testament, seeing these concealments and under-valuations are most frequent and ordinary: Yet The Lords, by plurality, found he had amitted the benefit of having any share of the goods so fraudulently omitted by him, and that they fell to the sister.
Fol. Dic. v. 1. p. 240. Fountainhall, v. 2. p. 180.
