In how far, and by what means, the executor is constituted proprietor.
Daniel Fraser v. James Gibb
Date: 10 February 1784 Case No. No 95.
Debtors are not bound to make payment to executors or nearest of kin, unless confirmation has been obtained as to their full debts.
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Fraser, as next of kin, and executor of a creditor of Gibb, and as having expede confirmation with respect to some other of the defunct's effects, and in a portion likewise of Gibb's debt itself, sued him for payment, and obtained decreet against him. Gibb presented a bill of suspension; but it having been refused by the Lord Ordinary on the bills, he, in a reclaiming petition,
Pleaded, To give an active title to a creditor's executor, confirmation respecting the particular debt claimed has ever been found to be necessary; although, by being partially confirmed, the executor may render the office itself transmissible to legal or to conventional successors; as was determined in the case of the Creditors of Murray, 4th December 1744, No 89. p. 3902.
Answered, “The confirmation by an executor, qua next of kin, of any one subject belonging to the deceased, as it proves his right of blood, and consequently his title to the legal succession of his moveable estate; so, by our latest decisions, it has been adjudged to carry the whole executry out of the testament of the deceased, and to make even the part which was not confirmed, to transmit to the executors of the person confirming on his death.” Erskine, b. 3. tit. 9. § 30.
Observed on the Bench; The effect of partial confirmation, precisely like that of a general disposition of moveables, is to give jus ad rem; but in order to confer jus in re as to any particular subject, the executor must be confirmed in such subject itself.
The Lords therefore remitted the cause to the Lord Ordinary, with an instruction to pass the bill.
Lord Ordinary, Swinton.Act. G. Fergusson.Alt. M. Ross.Clerk, Home.
N. B. The Lord Ordinary having, on the above ground, suspended the letters, found expenses due by the charger; with respect to which he reclaimed to the Court;—but his petition was refused, without answers.
