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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Lord Elibank v. Alexander Mackenzie of Fraserdale
Date: 27 July 1708
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Lord Elibank, as heir to his mother, eldest daughter to Doctor Burnet, late Archbishop of St Andrew's, pursues Alexander Mackenzie of Fraserdale, son to Lord Prestonhall, in a count and reckoning, for half of the bishop's executry intromitted with by Prestonhall.
Alleged,—By the bishop's testament and codicil, Anne Burnet, Lady Prestonhall, his second daughter, is nominated executrix and universal legatrix, and so has the total right and property of the goods established in her person; and the Lady Elibank, her sister, had only the half of what she could recover; and he is content to account for the half of all he intromitted with, seeing it is not to be presumed he would let it perish, the half of it being his own; but he cannot be obliged to count exactly and precisely for diligence like other executors, because the bishop, by his testament, has allowed the legatars to affect the goods disponed, in case his executor be negligent or delay their payment; which imports, that he did not tie his executor to diligence.
Answered for Lord Elibank,—That all he craved from Lord Prestonhall was to count to him for the inventory of the testament confirmed; and, where he shows either diligence, or that it would have been frustraneous, he is willing to allow it, though not recovered: for, if the debtors were insolvent, that was to cast out money in vain to pursue them. But to exeme him from diligence totally, that he might count only what he had actually received, is contrary to the very nature of the office of executry, and destructive to the interests of orphans, relicts, creditors, legatars, and all others concerned; and saps and subverts the very foundations of law: For quorsum is an inventory given up, and faith made upon it, and caution found, if the executor will count for no more than what he has received? For how should we know what he has got and what he has not? Therefore, the only rule must be, what diligence has he done for recovering the inventory: and law has no remedy to relieve him of that, but in one single case, viz. where, by mistake, he has given up and confirmed heritable sums, as if they had been moveable; but the hazard lies most on the other hand, of giving up a short defective inventory. And this being a frequent case, occurring every day, law has provided two remedies for obviating thereof, viz. a dative ad omissa and ad male apprettata; but there is no dispensation with the doing of diligence. Yea, some think the testator himself could not discharge it, being contrary to jus publicum and the general utility; and the clause adjected by the bishop, giving the legatees access to affect executry-goods as fully as if they had a special assignation thereto, in case of the executor's negligence, makes no specialty to import a liberation from diligence; for that is no more than what is implied in the nature of all executors, that those having interest in the confirmed goods may affect them quoad non executa.
The Lords found Prestonhall and his son accountable for the inventory given up in the testament, whether recovered or not; but with this quality. That, in discussing the particular articles, he might discharge himself with proving he had done diligence, or that the parties were insolvent and the debts irrecoverable. This was so decided, me referente.
