Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. II.

Form of Confirmation.

Thomas Fairholme
v.
Margaret Bisset

Date: 18 January 1662
Case No. No 5.

A general confirmation of goods in a shop, was preferred to a posterior one, which specified the different articles.

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

Thomas Fairholm, as executor-creditor, confirmed to Andrew Reid, pursues Margaret Bisset, his relict, to deliver the ware in his shop, contained in the pursuer's confirmation. The defender alleged absolvitor, because she has confirmed the ware in the shop, specially and particularly for the use of the hail creditors; and the pursuer's confirmation is only general, not condescending upon the particular ware; and though the defender's confirmation be posterior, yet it is special, and hath attained possession before any pursuit, at the pursuer's instance, upon his prior confirmation; and confirmation does not establish property until possession or execution, but is only as a legal disposition incomplete, as gifts of escheat, where the first sentence or possession gives the first real right of property. The pursuer answered, That his confirmation is special enough, bearing the ware of the shop to be silks, stuffs, and others, worth 4000 merks; and the confirmation alone constitutes the property unto the executor, because he is hæres mobilium; and the property being before in hæreditate jacente, ipso facto, by the confirmation it is established in the executor. 2dly, By the constant practice of this kingdom, there could be no second principal confirmation, but only ad omissa; and she could never confirm that which the first executor had confirmed. The defender answered, That, by act of sederunt of the Judges in the usurper's time, all executors confirming within six months after the defunct's death, were ordained to come in together; and, therefore, it was then the custom, that all confirmed principally the same things, seeing they could get no more than what was in their confirmation; and the defender's confirmation being at that time, must be sustained. The pursuer answered, That the defender cannot have the benefit of that act of sederunt, because she confirmed not within six months after the defunct's death. The defender answered, She confirmed within six months, or six or seven days more, which is an inconsiderable difference.

The Lords preferred the first executor to the goods in the shop.

Fol. Dic. v. 1. p. 272. Stair, v. 1. p. 82. *** Gilmour reports the same case:

Thomas Fairholm, as executor creditor to Andrew Reid, pursues Margaret Bisset, for certain merchant ware intromitted with by her, belonging to the defunct her husband. It was excepted, That she intromitted as executrix-creditrix to her husband, the samen goods being in her possession the time of the confirmation; and the pursuer having done no diligence therefore, before her confirmation, she ought to be preferred, seeing confirmation and possession complete a right in her person, without farther execution, which a naked confirmation doth not in the person of the pursuer. It was answered, That the first confirmation, in the person of the executor-creditor, gives such a right, that it excludes all second confirmations in the point of law, except ad omissa et non executa, where the principal executor is dead. And albeit the English Judges, in whose time both testaments were confirmed, did bring in pari passu all creditors who did confirm within half a year after the defunct's death, and that the pursuer's testament was within half a year; yet this excipient, by her confirmation, cannot have that benefit, far less can she be preferred; because she was not confirmed till after the half year was expired. It was replied, That she was confirmed within nine days after the half year, and her edict was served within the half year.

The Lords preferred the pursuer.

Gilmour, No 17. p. 14.