Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 EXECUTOR.
Subject_3 An executor found liable for a greater sum than the amount of the valuation put upon the defunct's goods in a judicial inventory, a creditor having offered that higher value.

James Craig
v.
Anne Rattray

Date: 7 March 1777

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[Faculty Collection, VII. 402; Dictionary, App. I., Executor, No. 1.]

Braxfield. As to the form of confirming ad male appretiata, Whatever might have been the rule formerly, it is not absolutely necessary now. The creditor has a direct action against the executor to account: the value put on the goods at the appreciation is no more than a presumptive value: the fair way is to sell by public roup. Whenever there is an appearance of a shortcoming, the goods already disposed of cannot be recalled; but, as Craig offered L.200, the executor must be liable to that extent.

Covington. The law of Scotland has received greater alterations in the matter of executry than in any other particular. The law now vests the subjects in the executor, and the necessity of confirmation ad male appretiata has been in many cases got over. If action is competent, to any creditor afterwards, Why not at the very time of the executor taking possession? In some cases a creditor would not be entitled to force a roup, as in the case of family pictures and jewels.

President. I imagine that the commissaries have erred by regarding ancient practice too much. Nothing is more consistent with mutual justice than to estimate goods according to the value which the creditor offers to hold them at. The commissaries ought to have waited till the parties were in the field, and they ought to have taken the value upon oath. As to the distinction made by Lord Covington with respect to family pictures and jewels, the law, in my opinion, knows no such distinction. The creditors have a right in them, and they cannot be obliged to hold the estimate value as the real amount.

Kaimes. Land itself, the most precious of all goods, must go till the creditors are once paid, even the family estate. Confirmation ad male appretiata is a very imperfect remedy. Here the woman confirmed qua relict, at a presumptive value. Had the creditors stood by and said nothing, that value would be held the just value as to goods of which she had disposed.

On the 7th March 1777, “The Lords remitted to the commissaries, with this instruction, that they find the relict accountable at the value of L.200, which Craig offered for the goods.”

Act. A. Crosbie. Alt. D. Græme. Reporter, Monboddo.