Subject_1 CREDITORS OF A DEFUNCT. Subject_2 SECT. II.
Decisions upon the act of Sederunt 1662*.
Ramsay v. Nairn
Date: 2 January 1708 Case No. No 14.
A testament being confirmed by the defunct's creditor, and the same subject being again confirmed by another creditor within the six months, the Lords found, that what ever defect might be in the second confirmation (as making thereby two principal testaments, which seems inconsistent) yet that it was sufficient to give the second the benefit of coming in pari passu with the first.
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William Nairn of Dunsinnan, being creditor to Young in Dunkeld, confirms himfelf executor-creditor to him, and thereby uplifts forty bolls of bear and malt he had lying in his barns. Mr David Ramsay being likewise a creditor, he coufirms the same subject, with sundry other goods; and, being within the six months of the debtor's death, he pursues Dunsinnan to communicate to him a proportional part of what he had intermeddled with, in respect of the act of sederunt 1662, bringing in all creditors confirmed within six months of the defunct's decease pari passu. Alleged, Your confirmation is null, because there cannot be two principal testaments, and therefore, I being first confirmed, all you could in law do was to take out a dative ad omissa, or male appretiata, or ad non executa; but you could not confirm upon the same funds and subjects I had affected before you; and this was not the habile way of doing it, but only to get yourself conjoined, or by citing the principal creditor-executor, as is the practice of the Commissaries of Edinburgh, who no more allow two executors by distinct confirmed testaments, than there can be two heirs, not being heirs-portioners; and such a confirmation was found null betwixt Lees and Dinwiddy, voce Executor. Answered for Mr Ramsay; He opponed the act of sederunt, which allows them, within the six months, either to confirm or do some diligence against rhe principal executor, to give them a right to a proportion of the subject confirmed, or the value of it; and this is as agreeable to the analogy of law as the act 62d, 1661, bringing in all apprisers and adjudgers that are within year and day pari passu; and yet every creditor must apprise or adjudge for himself. And the second testament annulled in Lees's case was, because it was a testament dative; but this will not hold in creditors confirming, who, by the act of sederunt 14th November 1679, are obliged to confirm no more than what will pay their own debt. See Stair, tit. Executry, § 68. and Mackenzie's Institutes, p. 335. And esto it were an error, yet being the common practice through all the inferior commissariots, it is sufficient excuse pro præterito, as was found in a parallel case, December 14th 1671, Duff contra Forbes*, where error communis quodammodo fecit jus. And, by the 20th act of Parliament 1696, the founding on an executor-creditor's confirmation does not defend a vitious intromitter pursued, unless he derive a right from him; and the least that can be allowed to his confirmed testament is, that it may have the force, effect, and validity of a citation, which, it is yielded, would have brought him in pari passu with the first executor.——The Lords found, whatever defect might be in his confirmation, yet it was sufficient to give him the benefit of coming in pari passu with the first executor, the expence of the first testament being always deduced primo loco; and Mr Ramsay discounting what the inventory confirmed by him extends to more than the 40 bolls of victual confirmed by them both.
Fol. Dic. v. 1. p. 206. Fountainhall, v. 2. p. 412.
