In how far, and by what means, the executor is constituted proprietor.
Agnes and Jean Brodies v. James Stephen Commissary-depute of Moray
Date: 10 August 1753 Case No. No 90.
The nearest of kin may confirm either a part or the whole of the executry; and a Commissary is not entitled to refuse to give out a confirmation, because the whole moveables are not given up in the inventory.
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Agnes and Jean Brodies obtained themselves decerned joint executors dative qua nearest of kin to their deceased sister Margaret Brodie, and gave up in the inventory nothing but a small part of the household-furniture which had belonged to her. The Commissary-depute refused to give out the confirmation, because the inventory did not contain all the moveables of the defunct; and insisted that the executors should give up inventory upon oath, bearing that the inventories contained the whole moveables which belonged to the defunct, and had come to their knowledge.
Agnes and Jean Brodies gave in a summary complaint to the Court of Session, complaining of the above refusal; and argued, that as by the act 26th, Parliament 1690, it is provided, that the nearest of kin shall have liberty to confirm or not to confirm the testaments of persons deceased as they think proper; and shall not be compelled to confirm by the Commissaries or their Fiscals; so when the nearest of kin chooses to confirm, he may confirm part by giving up in inventory as much as he pleases, and cannot be compelled by the Commissary to give up more. And such partial confirmations have been found by late decisions of their Lordships sufficient to vest the right of the whole moveables in the person of the nearest of kin.
To this complaint the Commissary-depute answered, That by the instructions to the Commissaries, no testament is to be confirmed till the executor make oath that the inventory contains all the moveables of the defunct which have come to the executor's knowledge; and the stile of the confirmation is, that the inventory is faithfully given up by the executor. And although, since the said act of Parliament, a Commissary cannot compel persons to confirm a defunct's testament, yet if they do confirm, they ought to give up inventories faithfully, and upon oath, especially where creditors are interested, and insist for an oath; and in the present case, the respondent is himself a creditor to the defunct.
Before the complaint and answers were advised, the Commissary-depute had given out the confirmation; and therefore the complainers insisted only for the expenses of the complaint.
“The Lords found, that the respondent did wrong in refusing to give out the confirmation mentioned in the complaint; and found him liable to the complainers in the expenses of the complaint.” See Nearest of Kin.
Act. Lockhart.Alt. Tho. HayClerk, Pringle.
Fol. Dic. v. 3. p. 191. Fac. Col. No 88. p. 133.
