Where there is an executor confirmed, a legatee cannot pursue a debtor of the defunct, if not confirmed ad omissa.
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Elizabeth Hamilton, relict of the late John M'Farlane, writer to the signet, executed a deed in favour of Elizabeth Syme her servant-maid, whereby, on the narrative of the care she had taken of her, she legated and bequeathed to her 400 merks; and, for her further security, assigned her in and to as much of the first and readiest of her effects as should satisfy and pay the said 400 merks, and annualrents thereof after her death. Upon this title, Elizabeth Syme pursued Alexander Bell, town-clerk of Linlithgow, as executor confirmed qua nearest of kin, and also John and Robert M'Farlanes, sons-in-law to the defunct, as intromitters with effects not contained in the executor's inventory.
Alleged for the executor, That he was exhausted; and for the other defenders, it was objected to the pursuer's title, That there was another confirmed qua nearest of kin, to whom only they were answerable.
The Lord Ordinary, “In respect the pursuer is not confirmed executor-creditor ad omissa, found no process against the said John and Robert M'Farlanes, without prejudice to her insisting against the executor confirmed, as accords.”
The pursuer reclaimed; and having in her petition set forth the case as of a common bond granted to her in remuneration of her service, the Lords, on moving thereof, thought that it deserved an answer; for that although, where there is an executor confirmed, action will not lie against another person as vitious intromitter, yet it was thought action might lie to a creditor, against an intromitter with effects omitted out of the inventory, in valorem; Durie, June 20. 1629, Douglas contra Tours, voce Passive Title.
But in the answer to the petition, the truth of the case being set forth, that the ground of the pursuer's process was not a common bond, but a legacy; the Lords having advised petition and answers, and considering that the pursuit is at the instance of a legatary, “Adhered to the Lord Ordinary's interlocutor.”
