John Hamilton of Bangour, v. The Lady Ormistoun, Sir John Inglis and his Sisters
Date: 6 December 1709 Case No. No 11.
A party being decerned executor:-dative, qua nearest of kin, when there was nearer, the Lords found that his title, in a process at his instance against the defunct's debtors, was not quarrelable summarily before the Lords by the nearest of kin compearing for his interest, but that be must first apply to the Commissaries for reduction of the decree dative and preference.
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In the action at the instance of Bangour, as executor-dative ad omissa, qua nearest of kin to Sir William Hamilton of Whitelaw, against the Lady Ormistoun, and her children of the first marriage, as debtors to the defunct, whose debts had been omitted in the principal testament confirmed by the Lady Houshill;
Alleged for the defenders; The decreet dative is null, and no process can be sustained thereon; because, by the act 26th, Parl. 1690, none can be confirmed executors-dative to a defunct, but the relict, bairns, nearest of kin, or creditors: And the pursuer is neither creditor nor nearest of kin to him, William Dunlop his nephew being nearer.
Replied for the pursuer; 1st, The nearest of kin not having opposed the pursuer's being decerned dative ad omissa, it is jus tertii to the defenders, to found on the right of the nearest of kin. 2dly, The pursuer being heir to the defunct, and creditor to the executrix qua nearest of kin, for his relief of moveable debts, might, conform to the act 41st, Parl. 1695, obtain himself decerned executor-dative to the defunct, as if he were creditor to him; to the end he may have access to make effectual the goods and debts omitted by the principal executrix.
Duplied for the defenders; 1st, It is not jus tertii for them to object against the pursuer's title, in respect the nearest of kin compears and concurs, 2dly, The pretence, that the pursuer is creditor for his relief, is nothing to the purpose, seeing that debt is not yet constituted; and titles which ought to be made up by legal diligence, are not to be made up by reply at the bar.
The Lords sustained process; in respect the pursuer's title of executor could not be quarrelled summarily before their Lordships by the nearest of kin; but he behoved to apply first to the Commissaries for reduction of the decreet dative and preference.
