Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. VII.

The appretiation in the confirmed testament may be corrected by a confirmation ad male appretiata, or by proof of higher value. - License to pursue.

William Martin
v.
Agnes Nimmo

Date: 2 February 1672
Case No. No 64.

The estimation put upon goods by the defunct himself, must be the rule, in which case, there is no place for an executor ad mala appretiata.

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William Martin, as, executor quoad non executa et appretiata, pursues the said Agnes Nimmo, who was executrix confirmed to her husband, Abraham Pargillies. It was alleged, That he could have no right, because he was neither a creditor nor nearest of kin to the defunct; neither were the particulars libelled dolose omitted, seeing they consisted of a number of bolls of corn, which were estimated by the defunct himself to the third curn of the growing crop, and was so given up in inventory. It was replied, That the crop being then in the barn-yard, and in the defender's possession when the testament was confirmed, she knowing that they amounted to much more than the husband did estimate, was in pessimo dolo to make that inventory, and make faith thereupon, and so ought to forfeit her right, which must fall and belong to the pursuer, as executor ad omissa and male appretiata. The Lords, in hoc facti specie, did not find that the executor was in dolo being a woman, and having given up inventory by a procurator, as her husband had estimated the same, and therefore assoilzied her; but they did not decide, if she had been in dolo, that a stranger being executor ad omissa, would have right in prejudice of a creditor or nearest of kin, which in reason and law seems not to be sustained; for, albeit as to the principal executor he would be preferred, yet the fault of the principal executor ought not to prejudge the nearest of kin, or a lawful creditor, who would have good action against the executors ad omissa to make compt deductis impensis.

Fol. Dic. v. 1. p. 275. Gosford, MS. No 458. p. 238. *** Stair reports the same case:

Abraham Pargillies having no children, nominates his wife, Agnes Nimmo, his executrix and universal legatrix, and gave up his crop that was then upon the ground at the third curn, and at L. 4 the boll. She confirmed the testament after separation of the crop. William Martin being nearest of kin to the defunct, takes a dative ad omissa et male appretiata, and thereupon pursues the executrix for the quantities and prices of the corns more than she confirmed, the quantities being much more, she having gotten L. 6 for the boll, and having confirmed after she knew the quantities and prices. It was alleged absolvitor; because the defender being universal legatrix and relict, all that was omitted belongs to herself; and albeit an executor that has only right by his office will be excluded, if dolose he omitted, yet legatars will not, but have access against all, even ad omissa. 2do, The husband having given up the quantities and prices of his crop by his own mouth, his determination thereof is sufficient, and greater prices cannot be demanded; for, if the prices had fallen lower, the executrix would have been liable for the prices expressed by the defunct, 3tio, Though these prices should not hold, etiamsi sit magna differentia,, yet it is sufficient purgare dolum.

Which the Lords found relevant; but had no need to determine, whether dolose omissa were lost to the executor, whatever her interest were, whether by her office only, or also by any other interest.

Stair, v. 2. p. 59.