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Scottish Court of Session Decisions >>
Craig v The Executors of her Husband. [1666] Mor 3494 (00 June 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0903494-028.html Cite as:
[1666] Mor 3494
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In a process pursued at the instance of Catharine Craig, relict of John Rolling, against the executors-creditors of her husband;
The Lords found, That the executors-creditors were bound to diligence for the whole inventory, just as any other executor, and that not only for payment of their own debt, but that the superplus may be furthcoming to the rest of the defunct's creditors, and others having interest.
Fol. Dic. v. 1. p. 240. Gilmour, No 188. p. 136.*** Dirleton reports the same case:
It was decided, That an executor-creditor was liable to do diligence as other executors; and though there was a difference betwixt him and other executors, upon that account that he was confirmed in order to his own interest, and to the effect he might be paid off his debt, and had preference before other creditors; yet as to the duty and office of an executor there was no difference; and having accepted the office, which was voluntatis, it became necessitatis, and he was obliged to execute it.
Reporter, Reidie.
Dirleton, No 35. p. 15.*** The same case is also reported by Newbyth:
John Railling being obliged in his contract of marriage with Catharine Craig to provide her to the annualrent of L. 1000, and to the hail conquest during the marriage; the said Railling being deceast, John Bisset and certain others, creditors, confirm themselves executors-creditors to the said Railling; and Catharine Craig the relict, as creditor to her umquhile husband by her contract of marriage, pursues the executors-creditors, for count, reckoning, and payment, more than satisfies their own debt. The defence proponed was, That being only executors-creditors, they were not liable to count, unless the pursuer would allege that they had intromitted with more than would satisfy their own debt.—To this it was answered, That whether they had intromitted or not with more than would pay themselves, they must count to her in the hail inventory confirmed; and that they are liable to do diligence therefor.—The Lords found, That executors-creditors are liable to do diligence for all the sums contained in the inventory, and confirmed by them, more than satisfies their own sums.
