An executor was not allowed to exhaust the testament by an heritable debt paid by him without distress, he having omitted to do diligence against the heir for his relief.
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Gilbert Robertson in Inverness, by his testament, nominates Jean Campbell his spouse, his executrix. She is afterwards married to William Baillie commissary of Inverness, who confirms the first husband's testament in the relict's name, and intromits with a considerable moveable estate. Janet and Isobel Robertsons her daughters, and as nearest of kin to their father, pursue their mother, and Baillie her present husband, to count to them for the inventory of the testament. Alleged, It is exhausted conform to a decreet of exoneration produced. Objected, That though they allowed all the legacies and testamentary debts, with the privileged funeral charges and medicaments instructed, to be paid, yet she could not exoner herself with an annuity of 400 merks yearly due to Marjory Ross, the said Gilbert's mother, whereof she produced discharges for four years posterior to her husband's decease, because that liferent annuity was heritable quoad debitorem; that is to say, the debtor's heir was bound to pay it, and relieve the executor of the same, and therefore ought not to have been ultroneously paid by her, the executor, without a distress by a process, and decreet obtained against her. Answered, The creditor in law has both the heir and executor liable and subject to him, and he may pursue and affect any of them he pleases, at his option; only, law has provided recourse to the heir against the executor, where the heir is compelled to pay a moveable debt; and e contra the executor has relief against the heir if he pay an heritable debt; but this does not hinder an executor to make payment of a true debt, though heritable, without putting the creditor to the charges of a pursuit; and though it be voluntary, yet they may recur against the heir, as he who is primo loco liable for such debts; as was found 7th March 1629, Falconer contra Blair, voce Proof. Replied, This being an annuity, not accessory or relative to any principal sum, it did not burden his executor, there being quot anni tot debita, l. 4. D. de ann. et menstr. legat. and was so decided by the Lords, 5th February 1663, Hill contra Maxwell, voce Heritable and Moveable; and so Lord Stair seems to understand it, lib. 3, tit. 8. However you have neglected to seek relief of this debt from the heir, and therefore can never burden the executry due to us jure sanguinis therewith, but must take it in your own hand, and operate your own relief as you think fit, having paid it without a sentence, and so exhausted the inventory by partiality and gratification, in preferring one creditor to another, which is unwarrantable. The Lords considered that a sum may be heritable quoad the creditor, and fall to his heir, and yet be moveable quoad the debtor, and primo loco affect his executry and moveables, et e contra; but here they found the executor paying this heritable debt without a sentence, and having never pursued the heir to make him liable for it, she cannot exhaust the testament thereby, nor get allowance of the same.
Then she claimed a third of the dead's part, as being executrix nominate. Alleged, That, by the 14th act 1617, that third is only due to stranger executors, which the relict is not, but falls to a third of the whole; and it were unjust to give her likewise a third of the dead's part; and so thinks Lord Stair, lib. 3. tit. 8. and that stranger-executors get a third for their encouragement to accept, even as the fiduciary heir among the Romans deducted his quarta trebellianica; and in this sense the heir was found a stranger-executor, and got a third as having no proper interest in the executry,—December 1690. Answered, Wives fall their share in their husband's moveables, not jure successionis, but rather as a division of the communion of goods now ceased by the dissolution of the marriage; and Sir George Mackenzie, in his first observation on that act of parliament 1617, seems to incline to give the wife a third of the dead's part. The Lords having balanced the decisions, and particularly, 29th November 1626, Forsyth, voce Executor; 9th July 1631, Wilson, Ibid.; and 15th January 1674, Paton, Ibid.; they found a relict being executrix nominate, had no right to a third of the dead's part.
In the preceding decision the question was, where the creditor died, whether his heirs or executors had right to the money? In the first branch of this decision, the doubt is just in the opposite case; the debtor dying, whether his heir or his executors are primo loco liable in payment of the debt, and which of them is bound to relieve the other in case of distress?
Fol. Dic. v. 1. p. 240. Fountainhall, v. 2. p. 250.
