If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.
Din v. Blair
Date: 18 December 1744 Case No. No 84.
Executors are liable to diligence for the subject of the inventory confirmed; but are not liable for their omission in not confirming.
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Executors are liable to diligence for the subject of the inventory confirmed; but are not liable for their omission in not confirming, in respect every party having interest may confirm ad omissa.
And accordingly, in the process at the instance of John Din, in the right of Anne Blair his wife, as one of more nearest of kin of James Blair her father, against John Blair son and executor nominate of the said James, to account for his wife's share of her father's moveables, and that not only to the extent of the inventory confirmed by him, but to the full extent of the effects known to the executor to have belonged to the defunct, which it was insisted he was, by the trust-conferred on him, bound to have confirmed; especially in this case, where, by a special clause in the nomination, all other executors were debarred, the Lords ‘found the defender only liable for what he had confirmed or intromitted with;’ for even such debarring clause was not understood to preclude the nearest of kin from confirming ad omissa.
Fol. Dic. v. 3. p. 192. Kilkerran, (Executor.) No 8. p. 174.
