Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. IV.

An Executor has the only Title to Intromit with the Subjects Confirmed.

Lord Napier and Others
v.
Menzies and his Cautioners

Date: 19 December 1740
Case No. No 31.

A person who had confirmed executor to his father, before his confirmation, intromitted with moveable subjects belonging to his father, to whom he was likewise debtor in moveable debts. In an action against his cautioners, the Lords found, that neither the debts due by the executor to his father, nor his intromission before confirmation, could be brought in computo to exclude the cautioners from getting credit for the debts truly paid by the executor.

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One who is creditor to a defunct, either originally or by assignation, or by having made payment upon a discharge which entitled him to relief, thereafter confirming executor qua nearest of kin, has the same preference as if he had confirmed upon his debts as executor-creditor, his confirmation being in the one case as in the other considered as a proper diligence for his payment or relief, Nor does it vary the case, in so far as concerns the cautioners in the confirmation, though the said executor be also heir; for though, as heir, he be universally liable, yet his cautioners in the testament are only bound for him qua executor, for what remained unexhausted of the testament over his own debt.

Upon which grounds it was, in the process at the instance of the Lord Napier and Others, creditors of the deceast Sir William Menzies, against his Executor qua nearest of kin, and his cautioners, found, ‘That the cautioners for Mr Thomas Menzies, in the eiks of Sir William Menzies his father's testament, ought to have credit for such debts as were paid by Mr Thomas the executor, before confirmation, and of which debts he had taken assignations or discharges;’ and that notwithstanding Mr Thomas the executor was also heir.

1744. February 11.—In a process at the instance of Lord Napier, Colonel Dalrymple, and others, as creditors to the deceast Sir William Menzies, against the Cautioners in the confirmation of Mr Thomas Menzies his son, executor confirmed to him qua nearest of kin, it was found ut supra, December 19. 1740, ‘That the executor and his cautioners were to have credit for such debts as had been paid by the executor before confirmation, and of which he had taken assignations or discharges.’

Another question was now stirred between the parties. It was alleged for the pursuers, That Mr Thomas the executor had, prior to the confirmation, intromitted with moveable subjects belonging to his father, and was also debtor to his father in moveable debts, and that therefore the cautioners could not have credit for the debts paid by the executor before confirmation, without accounting for these subjects, and which they argued to be a very different point from that formerly determined. Where one, who afterwards confirms executor, has, prior to the confirmation, paid debts, there may lie equity for his relief of such payment when made out of his own money; which is not the case, where, at the time of the payment, he has the executry-money in his hands; and if credit were to be given for payments made in that case, it would establish this doctrine, that a nearest of kin might intromit, without confirmation, with great sums, and pay what debts he pleased with the money arising from such intromission; and when he came to confirm the remaining subjects of the executry, his cautioners should be allowed to discharge themselves with debts paid with that very money he had irregularly taken up without confirmation, and apply them in extinction of the inventory confirmed, which they pleaded to be absurd.

Nevertheless, the Lords found, ‘That neither the moveable debts owing by Mr Thomas to his father, nor the intromissions had by him before confirmation, could be brought in computo to exclude the cautioners from getting credit for the debts truly paid by the executor.’

The question was not here with the executor, but with the cautioners, whose obligation is limited to the inventory confirmed; and as they have no concern with any intromissions the executor may have had with the defunct's effects not confirmed, or what he may be owing to the defunct, so it was thought, that to exclude them from the defence of the subject being exhausted, on account of intromissions beyond the inventory, or of debts due by the executor to the defunct, would be to extend their obligation beyond the intention of it, and to subject them as cautioners for subjects not confirmed, whereby a cautioner's obligation for an executor would be so uncertain as to its extent, that no man would ever undertake it. And as for the inconveniency that a nearest of kin may intromit with great sums without confirmation, and therewith pay whom he pleases, and the cautioners in the confirmation of the remaining subject avail themselves of such payment, it is what the creditors have in their power to prevent, by confirming themselves in due time, or if they be excluded by the confirmation of the nearest of kin, by pursuing him within the six months, See Executor Creditor.

Fol. Dic. v. 3. p. 190. Kilkerran, (Executor) No 5. p. 172. & No 7. p. 173.