Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. VIII.

If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.

Aitkin
v.
Hewart

Date: 23 July 1625
Case No. No 71.

Found as above.

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In an action betwixt Aitkin and Mr Peter Hewart, who was convened as being one of three executors to umquhile Janet Wood, to make payment of a legacy left by the said Janet to the pursuer, to be paid by her executors; the Lords found, That where there is more executors confirmed to any defunct, and all the rest are deceased but one, that that one surviving, hath good right to pursue for the whole gear pertaining to the defunct, even as if all the other executors were living, and might pursue; likeas that executor surviving may be lawfully pursued at any of the defunct's creditor's or legatar's instance, for the whole debt or legacy in solidum, in case his part of the executry would extend to as much as would satisfy that debt acclaimed, albeit the rest of the executors deceased had intromitted with their own parts of the defunct's goods; and that the said executor was not subject in his own part of that legacy only, as if it should divide proportionally among all the executors, but that he was subject in solidum for the whole, if his part of the executry would be so much as might satisfy the whole debt; which whole debt, in case foresaid, the one executor was holden to pay, albeit he had not intromitted with as much of the defunct's goods as might pay the same, if there was as much in the testament belonging to his part as would extend thereto, and so had right to intromit with and seek the same; for he ought to do diligence to recover the same; and not doing diligence, he is alike answerable to the creditors and legatars as if he had uplifted the same; and all the defunct's goods are affected for payment of the defunct's debt, the payment whereof may be sought out of any part thereof, either from all the executors, or any one of them that hath intromitted, or may intromit with as much as may satisfy that debt; and albeit one of more executors had paid out to other creditors or legatars, as much as would exhaust his own part of that legacy, yet that he remains debtor to any other creditor or legatar of the defunct's, so far as the rest of the gear of the testament, pertaining to the other executors deceased, will extend to, if any part thereof remain unexhausted and unmiddled with by them, or for the which diligence is not done; and that the said executor surviving, stands debtor to the creditors in place of the other executors deceased, if they have not intromitted or done diligence as said is, seeing the said executor surviving hath right to all which was not executed; but if the other executors have intromitted fully with their own parts, or done diligence therefore, the executor surviving is not liable but for the proportion of the debt acclaimed, according to his own part of the executry, and the other executors stand debtors likewise for their parts thereof.

Act. Aiton & Lermonth. Alt. Hope & Lawtie. Clerk, Scot. Fol. Dic. v. 1. p. 277. Durie. p. 180. *** Spottiswood reports the same case:

Any co-executor may be convened in solidum by a creditor or legatar, the rest being dead, if his intromission hath been above the value of the debt sought for, albeit the executors have made division among themselves, and he ought only to have his relief against his co-executors and their heirs.

Spottiswood, (Executors.) p. 112.