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A wife being confirmed executrix qua nearest of kin, the husband, who was also conjoined in the confirmation, for his interest, did, after his wife's decease, lead an adjudication upon one of the bonds confirmed. Many years thereafter, in a competition of creditors, the adjudication was objected to, as deduced by a person who had no right to the debt, the husband being only confirmed for his interest, which was at an end by the death of his wife. When the question came before the Lords, an inquiry was ordered into the practice of the Commissary Court, with regard to the confirmation of married women. It was reported as the practice of that court, for the wife only to be confirmed; and upon this the adjudication was sustained, seeing it appeared that the husband was confirmed joint executor with his wife, and the office behoved to accrese to him after her decease. See Appendix.
Fol. Dic. v. 1. p. 272.*** Kilkerran reports the same case:
Where a wife was confirmed executrix, and her husband for his interest, the husband, notwithstanding that adjection ‘for his interest,’ was found to be joint executor; and an objection made to an adjudication repelled, that the decree of constitution had been obtained only in name of the husband, in respect he being joint executor, and the wife dead, when the constitution was pursued, the whole office accresced to him.
The Lords having at first differed upon this, ordered an inquiry to be made into the practice of the Commissary Court; and it appearing that the practice uniformly was for the husband to give up the inventory in behalf of the wife, and she to be confirmed only, and not the husband, but only the powers of intromitting to be given to the wives and husbands for themselves and their interests, they found as above, the husband being in this case confirmed executor, though with the adjection of ‘for his interest.’
