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Scottish Court of Session Decisions >>
Mitchel v Mitchel. [1737] Mor 3935 (24 June 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor1003935-007.html Cite as:
[1737] Mor 3935
Though an executor-creditor die before sentence there is no place for an executor ad non executa.
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An executor-creditor is but a trustee, as well as a simple executor; but then he is a trustee principally for his own behoof; the law, which never dies, gives him a procuratory in rem suam, which is not a simple trust to die with himself, but may be followed forth by his representatives as a jus quæsitum. And as a decerniture and confirmation is truly an assignation to the subjects confirmed in security and payment of his debt, there can be no place for a new assignation or confirmation ad non executa, though he die before sentence.
Fol. Dic. v. 1. p. 279.
*** This case is reported by Clerk Home, No 88. p. 3900.; and by Lord Kames, voce Nearest of Kin.
