Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.
Subject_2 COMPLAINT FROM STIRLINGSHIRE.

Brodie
v.
Stuart

Date: 20 December 1757

Click here to view a pdf copy of this documet : PDF Copy

[Kilk. eodem die; Fac. Coll. No. 74.]

In this case several of the Lords gave it as their opinion, and it seemed to be the mind of the majority of them, that a simple decerniture as executor qua nearest of kin, without any confirmation, was sufficient to transmit to the representatives of such nearest in kin the right to bonds, or any other executry subjects ; and further, that one of several nearest of kin being decerned executor, would vest the right in the rest, because they thereby acquired a right to call him to account.

It is worth while to observe here the progress of the law. First, in the case of Drum, they found, that a decerniture as executor qua nearest of kin, with the confirmation of a part, vested the whole; then, in the case of M'Whirter, they found that the possession of the corpora of moveables, without either decerniture or confirmation, was sufficient to transmit the right to such corpora; then, in the case of one Spence, she being decerned executrix qua nearest of kin, and having conveyed to her husband certain bonds due to the defunct, and he having upon that conveyance taken a decreet of constitution against the debtor's heirs, and thereupon adjudged,—this adjudication was sustained, in a ranking of creditors, though the wife died without completing her title by confirmation : And now the majority of the Lords seemed to be of opinion that a simple decerniture, without any thing following upon it, vested the subject sufficiently, not only in the person of him who was decerned executor, but in the person of the other nearest of kin, not decerned executors, for whose behoof, as well as for his own, he was supposed to hold the office.

In the papers it was said, that a decerniture of executor qua nearest of kin was equivalent to a nomination in a testament-testamentary, in which case it could not be doubted but the right of the nearest of kin vested without any confirmation by the executor nominate, or any thing done by such nearest of kin.

But the point was not determined in general, but went off upon certain specialties, such as, that one of the nearest of kin was not only decerned executor, but made an inventory of all the bonds and other effects, and further, he granted an obligation to the other nearest in kin, obliging himself to account to them for his intromissions, and also he confirmed one bond, which the debtor otherwise refused to pay; but then, before this confirmation, one of the nearest of kin was dead, whose share, nevertheless, the Lords found, transmitted: so that, though the decision was put upon specialties, yet it can only be supported upon the general point.