Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

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Date: 10 January 1755

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[Kaimes, No. 74; Fac. Coll. No. 125.]

A General disponee to all goods and gear having been decerned executor-creditor, according to the form of the Commissary Court, the nearest of kin of the defunct interposed, and craved to be preferred to him in the office of executor ; and accordingly the Commissaries did recal the decreet dative in favour of the disponee, and decerned the nearest of kin executor, because they considered the general disposition as giving a right only to the goods, and a claim of debt against the heir in mobilibus, but not the office of executor ; but thereafter the cause being advocated, and the bill of advocation reported by my Lord Prestongrange, the Lords found, without a vote, dusentiente tantum Drummore, that the nearest of kin could not in this case confirm, for these reasons : lmo, Because he had no interest in the matter, seeing that the whole moveables belonged to the disponee ; and it was not sufficient that he had a right if he had not also an interest, and the law would not give him an office which was entirely unprofitable to him : this was my Lord Kaimes' reason. 2do, Because, as the law stood now, a man without confirmation got. a right to the moveables by possession, and to the debts, by uplifting them from the debtors, if they would pay him, without the necessity of a confirmation : but if in this case the nearest of kin could confirm, the disponee would be obliged, whether he would or no, to be at the expense of a confirmation, which of necessity must come out of the whole head, whereas the law gives him the option to confirm or not as he thinks proper ; and this was the President's reason. 3tio, For that the inconveniencies to the disponee would be very great, because the nearest of kin, by virtue of his confirmation, might seize upon the moveables at the value stated in the inventory, and apply them for the payment of debts : Now the disponee might choose not to part with these moveables, or might think them too low valued in the inventory ; in which last case he would have no remedy but a confirmation admale appretiata; and this was my Lord Huntington's reason. The Lords seemed to be of opinion that a confirmation of a disponee as executor-creditor was an absurd kind of confirmation, and that he should be rather confirmed as an executor and universal legatar.

N.B. In the case of a testament naming an universal legatar, but not an executor, it is likely the decision would be the same ; so that now there is no difference betwixt the nomination simply of an universal legatar and of an executor and universal legatar.