In how far, and by what means, the executor is constituted proprietor.
Alison v. Scollay's Creditors
Date: 26 May 1802 Case No. No 96.
A partial confirmation does not vest the right of the whole executry.
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It was objected to the interest produced by the Reverend Charles Alison, in the ranking of the creditors of the Reverend John Scollay, That the debt was due to his father James Alison, and although he had (November 1799) obtained a decree of constitution for payment of the sums due, and had led an adjudication upon it, (11th June 1800) which was produced in the process of ranking and sale; these were ineffectual, as they were obtained without any title; for although he had expeded a confirmation as executor to his father, no part of the debt now in question was confirmed.
The Court were unanimous (19th January 1802) in adhering to the Lord Ordinary's judgment sustaining the objections, and finding the adjudication void, as a partial confirmation gives only the right of pursuing, in the same way as a decree dative would have done; but the pursuer must confirm to the individual debt before extract.
Lord Ordinary, Bannatyne.For Alison, Fletcher.Agent, Tho. Gordon, W. S.For the Creditors, Maconochie.Agent, A. Youngson, W. S.Clerk, Menzies.
Fac. Col. No 43. p. 88.
