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Scottish Court of Session Decisions >>
John Ker v Jean Ker. [1667] Mor 3874 (18 July 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor0903874-063.html Cite as:
[1667] Mor 3874
The appretiation in the confirmed testament may be corrected by a confirmation ad male appretiata, or by proof of higher value. - License to pursue.
John Ker v. Jean Ker
Date: 18 July 1667 Case No. No 63.
An executor is obliged to depone both upon subjects omitted, and the wrong appretiation of those confirmed, at the instance of the executor ad omissa.
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John Ker being executor-dative ad omissa et male appretiata, pursues Jean Ker, as principal executrix, for payment, and referred the particulars to her oath. She alleged, That she had made faith at the time of the confirmation, that nothing was omitted or wrong prized, she could not be obliged to depone again. It was answered, That this was the ordinary custom, and was no more than a re-examination, and that it would not infer perjury though it were different; because, if she had any thing omitted that had come to her possession and knowledge after the inventory, or if she had then possessed it, but did not know, or remember, that it was in her possession, or in bonis defuncti, and ordinarily the prices are made by the Commissary, and but upon conjecture, and may be much better known thereafter.
The Lords repelled the defence, and ordained the executrix to depone.
