Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

James Lees, Merchant in Glasgow,
v.
Robert Dinwidie, Merchant there

Date: 18 July 1706

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James Lees, merchant in Glasgow, as executor-creditor to Ninian Glass in Crawford's-dike, having intented a process against Robert Dinwidie, merchant in Glasgow, and Elizabeth Kelburn, relict of the said Ninian Glass, for restitution and delivery to him of some barrels and a boat belonging to the defunct, and confirmed by the pursuer;—

Alleged for the Defender,—That before the pursuer's confirmation, the said Elizabeth Kelburn was confirmed executrix-dative to the defunct, and had obtained the goods pursued for, eiked to her confirmed testament; and Robert Dinwidie was assoilyied in a process at her instance for them, before the Commissaries of Glasgow, upon a ground of compensation by an equivalent debt the defunct was owing to him. So that the pursuer's confirmation is null, as being posterior to another's confirmation as principal executrix-dative: since there cannot be two principal executors to the same defunct; as was found betwixt Kennedy and Cumming, and the Creditors of Kinfauns.

Replied for the Pursuer,—Albeit the relict's confirmation was prior to his, yet his confirmation was expede before she did eik the goods now pursued to her first confirmed testament; and the making the said eik could be of no import, since the goods therein mentioned had been formerly confirmed by the pursuer, as executor-creditor, who therefore ought to be preferred to them, as if he had been confirmed ad omissa. 2. It is jus tertii to Dinwidie to found upon the relict's confirmation, since he derives no right from her.

Duplied for the Defender,—The pursuer's confirmation cannot subsist as a dative ad omissa, because it bears not to be such. Nor was the principal executor called thereto, which is necessary to the obtaining a dative ad omissa; because the principal executor has the privilege to eik, and may object against the ground of the executorship. 2. It is jus proprium, and not jus tertii, for the defender to found upon the relict's testament; because he stands assoilyied in an action at her instance as executor, and so has interest to maintain that absolviture.

Triplied for the Pursuer,—That he could not call the executrix-dative to his confirmation ; because, though her confirmation was prior to his, yet it was after the taking out and executing of his edict. 2. The absolviture obtained by Dinwidie against the relict cannot be obtruded to the pursuer, being res inter alios acta, wherein he is not concerned.

The Lords found the confirmed testament at the pursuer's instance null; in respect that, before the date thereof, the defunct's relict was confirmed executrix-dative, and the pursuer is also confirmed a principal executor, and not ad omissa, without calling of the first executor-dative.

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