Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Creditors of Robert Cunningham
v.
Susannah Cunningham, his daughter, and Mary Gavin, his wife

Date: 30 July 1745

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The said Robert Cunningham, who died in the West Indies, by his last will and testament, bequeathed to Mary Gavin, his second wife, in liferent, and to her daughter, in fee, his whole moveable estate in Scotland, and nominated his only son, Daniel Cunningham, his executor.

Daniel did not appear to claim the office of executor; but a competition for it ensued between the defenders and Elizabeth Cunningham, daughter of the deceased by a former marriage. The defenders were preferred by the Commissaries ; and the Court, on advising a bill of advocation for Elizabeth Cunningham, 3d February, 1744, “Remitted, with this instruction, that the Commissary of Glasgow do not proceed to name any person executor till the 1st of July next, or that notice come from Daniel Cunningham, executor nominated in the deceased Robert Cunningham's latter will and testament; but prejudice to the commissary granting warrant, in the meantime, upon proper application, to dispose of such of the moveables as may be perishable, the price whereof to be lodged in the hands of such proper persons as the commissary shall appoint, who shall find caution to make the same furthcoming to all parties having interest.”

Application was accordingly made, and the perishable articles were disposed of by roup.

Various creditors of the deceased now came forward, and having brought processes on the passive titles, and obtained decreet cognitionis causa, they applied, after the term named by the Court had elapsed, without the executor nominated appearing, to be confirmed as executors creditors. This was opposed by the wife and daughter; and the commissaries refused the office of executor to the creditors, “in respect of the other compearers' interests, who are already decerned executors; but finds the said executors ought to give up inventories, and expede confirmations of the subjects of the defunct.”

The following question now occurred between the creditors and the executors. The former insisted, that as the debts of the deceased exceeded his funds, and as they allege that a quantity of plate, which had belonged to the deceased, had been greatly undervalued in the inventories, it should be disposed of by public roup. On the other hand, the executors maintained that they were entitled to have the plate at the appreciate value, and were no further liable; leaving the creditors, if they thought themselves aggrieved, to the legal remedy of confirmation ad male appretiata.

The commissary ordered the plate to be rouped; but on advising a bill of advocation, Lord Tinwald, Ordinary, “remitted to the commissary, with this instruction, that the confirmation be expede without delay, and that he stop the roup;” and to this interlocutor the Court adhered, though with some difference of opinion.

Lord Kilkerran says, July 18, 1745,—“Upon moving this bill, Kilkerran took notice, that however it be ordinary and proper, where for any just cause confirmation does not proceed, to obtain warrants to sell by roup such goods as may be perishable, yet he never understood any number of creditors could bar another from confirming any subject, which could not suffer by delay of confirming, by an application to have the subject rouped.

“Elchies, with whom concurred the President, thought such sale, in every such case as the present, was right, as that whereby most was to be made of the subject; for that a confirmation ad male appretiata was but a lame remedy, for that by law it could not take place unless the mal-appreciation was to the extent of a third. They added, that after the sale, the price was still to be confirmed. After so much said, the petition was appointed to be seen and answered.

“The reasoning, as above, may be for what is expedient, but my notion of it is, that it is exceeding new.”

[I do not find any further notice of this case in Lord Kilkerran's papers, but it appears, from Elchie's report of it, (Executor, No. 17,) that the Court adhered to the Lord Ordinary's interlocutor.]