Sir James Kinloch of that Ilk, v. Blair of Ardblair, Merchant in Edinburgh
1721.
December. Case No. No 18.
An executor is but a trustee, and cannot gratuitously discharge debts owing to the defunct.
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Sir James being creditor by progress to the deceased Mr Gilbert Blair of Balgersho, obtained from his executor an assignation to certain debts due to the defunct, and given up in the inventory of his confirmed testament; and amongst others, a bond of 300 merks due to the said Mr Gilbert by the said James Blair: Upon this assignation, James Blair being charged, he obtained suspension upon a gratuitous discharge granted by the said Mr Gilbert Blair's executor, of a date anterior to the assignation.
The question arose, If a gratuitous discharge by an executor to the debtor of the defunct, does exclude the defunct's true and lawful creditors? And it was contended for the pursuer, that it does not; because, 1mo, The defunct him could not have gratuitously disponed or discharged in prejudice of his creditors; far less his executor who is now bankrupt. 2do, An executor is only trustee for the creditors of the defunct, and has by no means the absolute disposal of the subjects confirmed.
To the first, answered, The executor was solvent at the time of granting the discharge; and it is a rule, that gratuitous deeds are only reducible upon the act 1621, where the granter does thereby become insolvent; so that as the defunct himself could have granted this discharge notwithstanding his former debts, so may his executor; and if the executor became thereafter insolvent, sibi imputet; who did not insist in time against the executor to obtain payment.
To the second, answered, The executor is not in any proper sense a trustee, but a successor; he is indeed accountable to the creditors as far as to the value of the testament, but they have no real interest in the defunct's goods; otherwise they might recover them rei vindicatione, or condictione, against his debtors; which will not be pretended: All they have, is a personal action against the executor to accounts secundum vires inventarii; so that though the executor do gift or dilapidate the inventory, the acquirers are secure, providing he becomes not thereby bankrupt; and the only redress of the creditors is by their personal action against the executor.
Replied to this last, An executor is truly a trustee, which the very name denotes, importing an office, not a succession; he indeed has the only power to intromit with the defunct's moveables, and pursue rei vindicatione, or condictione against his debtors; but is not this perfectly consistent with his being a trustee? is it not the very design of the thing, that he alone should intromit for the common benefit of all concerned?
‘The Lords refused to sustain the gratuitous discharge.’
Fol. Dic. v. 1. p. 273. Rem. Dec. v. 1. No 28. p. 60.
