An executor intromitted, but did not confirm till after six months. A creditor within the six months cited the intromitter. This creditor found entitled to no preference, none of the creditors of the defunct having been confirmed, or having used other complete diligence against his representatives, in terms of the act of sederunt 1662.
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It had grown into practice, in rankings upon executry, to give preference to a creditor, who, within six months of the defunct's death, had cited an intromitter, or an executor confirmed, without distinction whether the executor was confirmed qua creditor to the defunct, or qua nearest of kin, to the diligence of all other creditors used after the expiry of the six months. And in a multiple-poinding at the instance of Charles M'Dowal, now of Crichen, who immediately after his father's death, had intromitted with his moveables, but who within the year, though after the expiry of six months from his father's death, had confirmed himself executor nominated, and thereby purged the vitiosity, preference was, agreeably to said practice, pleaded for Colonel M'Dowal to all the other creditors, in respect he alone had, within six months of the defunct's death, cited Charles the son as intromitter with his father's effects.
But, upon considering the terms of the act of sederunt 1662, the said practice appeared to be erroneous; for it is only thereby provided, “That where any creditors have done complete diligence, by obtaining themselves decerned and confirmed executors-creditors, or otherwise, any other creditors who shall, within six months of the debtor's death, use diligence, either by citation of such executor, or of an intromitter, or by obtaining themselves confirmed excutors-creditors, shall come in pari passu with those who had used the more timely diligence;” and, it appeared plain, that where no other creditor has done complete diligence, a citation to an intromitter falls not within the act: It was therefore found, ‘That none of the creditors of the defunct being confirmed executors to him, nor having used other complete diligence against his representatives, the act of sederunt 1662, did not entitle Colonel M'Dowal to any preference, notwithstanding his having cited the intromitter with the defunct's effects within six months after his death.’
And the like question having, about the same time, occurred in the ranking of the creditors of the deceast John Johnston in Dumfries, wherein Richard Dickerson pleaded preference to the other creditors, in respect of a citation given by him, within six months of the debtor's death, to the executor confirmed qua nearest of kin, the Lords, upon the 21st July 1742, pronounced the like judgment: ‘Finding him entitled to no preference, notwithstanding such citation, in respect none of the defunct's creditors had confirmed executors to him, or had used other complete diligence against his representatives.’
N. B. Where an executor qua nearest of kin is himself a creditor, as it has been found, that his confirmation qua nearest of kin gives him the same preference for the debts due to himself, as if he had confirmed executor-creditor; See Dec. 19. 1740. voce Executor, Lord Napier and Others contra Menzies and his Cautioners, No 31. p. 3849.; it would seem to follow, as a consequence of that judgment, that in such case, the citation to such executor qua nearest of kin, within the six months, would operate a preference pari passu with the said executor, to all other creditors doing diligence after the six months. See Payment.
Fol. Dic. v. 3. p. 192. Kilkerran, (Executor-Creditor.) No 1. p. 176.
*** This case is reported by Lord Kames, No 19. p. 3141.
