STEPS TO BE TAKEN ON OCCURRENCE OF A DEATH. 131. First thing to be done after Death.-Where the moveable estate left by the deceased is considerable, or where any of the next-of-kin is absent, it is advisable to have the repositories sealed immediately on the occurrence of death. This act is properly performed by a notary public, clergyman, magistrate, or medical attendant, but any respectable person present not directly interested in the succession may perform it. Where persons are in a dying state in lodging houses or inns, the duty of sealing devolves on the master or mistress of the house, who should deliver the keys of the sealed repositories to the Sheriff. (a) By an old Act of Sederunt,(b) a presumptive vitious intromission is established, against persons having charge of the dying whose heirs happen to be minors, if they do not seal or lock the repositories of such persons as soon as they become insensible.(c) 132. Sheriff may be asked to have Repositories Sealed.Where the intestate has no near relative to look after his affairs, and these are under the charge of servants, or where the nextof-kin feel uncertain whether there will be a sufficiency of assets to meet the debts, or where a creditor of the intestate desires to be appointed executor-dative, a petition may be presented to the Sheriff at the instance of any person having interest, for an order to seal the repositories and to take possession of the estate until an executor shall be appointed. 133. Suggestive Form of Petition.-Each petition will depend upon its own particular circumstances, but the following may serve as an example : Unto the Honourable the Sheriff of the Lothians, the petition of A. B., grocer, of No. Hanover Street, Edinburgh, nephew and one of the next-of-kin [or a creditor or otherwise], of the late C. D., painter, who resided at No. George Street, Edinburgh. That the petitioner is one of the next-of-kin [or a creditor, or otherwise], of the said deceased, and [here state the necessity for the application]. May it therefore please your Lordship to appoint some proper person or persons to seal the repositories of the said deceased C. D., with the seal of Court, and after the deceased shall have been interred, to remove the seals and to make and lodge in Court an inventory of the documents of value and whole property of every description which belonged to the deceased. According to justice, &c. 134. Vitious Intromitters with Intestate's Estate; their Liability. No person is entitled to intromit or interfere with the moveable estate of an intestate, without a proper title from the Court, and any person acting otherwise fixes on himself the character of a vitious intromitter, and so renders himself liable to those interested in the estate(d) for the whole of the deceased's debts.(e) The assumption of the character is tested in this way; whether the acts done were referable to kindness and charity only, or were such as none but a rightful executor had power to do. In illustration of the operation of this rule of law we shall notice: 1. Cases where the liability is incurred.-The liability is incurred by receiving money and paying debts without having given up an inventory of the estate and obtaining confirmation, not on the ground of fraud, but in consequence of "possession being taken contrary to the due order of law.(f)" A decree-dative without confirmation is not enough,(g) excepting (1) where the nextof-kin, or executor, is in possession; (2) where the debtor is willing to pay without confirmation, or has signed a bond of corroboration, or (3) where the thing, or debt, has been specially conveyed by the deceased.(h) This liability is not confined to strangers intromitting with moveable estate of the deceased, but extends to the heir or executors who uplift funds, or take possession without giving up an inventory,(1) also to executors confirmed, who intromit with more than is given up in the inventory confirmed.(j) It is inferred (d) Ersk. 3, 9, 49; Bell's Prin. § 1921; M'Laren, § 2268. (e) Simpson, 1854, 17 D. 33. (f) Forbes, 12th June, 1823, 2 Sh. 395. (g) Cunningham, 1827, 5 Sh. 315. (h) Ersk. 3, 9, 30. (i) Davidson, 13th Dec. 1867, 6 M. 151. (j) Ersk. 3, 9, 49. by interference with the deeds or documents of the deceased, except where these have been inventoried or other precautions taken(k); also by secretly opening sealed repositories and carrying off articles of value,(l) or privately removing the deceased's effects (m) 2. Cases where the liability is not incurred.—The liability is not incurred by acts referable to kindness or charity, or to a claim of right in the actor, inconsistent with any administrative character, or by an intromission in circumstances inferring the absence of fraud, and where a check is afforded on it(n); nor by intromissions by a widow after giving up inventory, but before obtaining confirmation, the intromitter being only required to account(o); nor by a widow simply continuing to possess the moveables left by her husband.(p) 3. Cases where the liability is purified.-The liability is purged by confirmation before action, or within a year and day from the opening of the succesion, where the intromitter is a relict, or one of the next-of-kin or personal representatives, but not where it is as executor-creditor merely(q); and it is discharged by creditors approving the proceedings or accepting a dividend.(r) 4. By whom the liability is pleadable.-The liability is pleadable only by the creditors of the deceased, not by his executors or next-of-kin; and it is not pleadable by heritable creditors until after discussing the heirs. As the liability arises ex delicto it cannot be founded on against the heir of the intromitter, but if the action be restricted to simple restitution it may be insisted in against the intromitter's representatives.(s) 5. The liability of intromitters among themselves.-Vitious intromitters are liable for one another, so a creditor may sue any one of them for the debt due to him, the intromitter who pays having a claim of relief pro rata against his co-delinquents; but if he sues them together they are each liable in equal sums according to their number, not according to the extent of their intromissions.(t) (k) Crawford, 1833, 11 Sh. 441. (1) Scott, 25th May, 1821, 1 Sh. 33. (m) Campbell, 1755, 5 Br. Sup. 838. (n) Dudgeon, 9th March, 1844, 6 D. 1015; Adam, 17th June, 1854, 16 D. 964; 26 Jur. 500. (0) Barbour, 19th Nov. 1824, 3 Sh. 299, N. E. 210. (p) Thomson, 1834, 13 Sh. 143. 135. Circumstances under which Executors Dative are Appointed. The cases in which the appointment of an executordative takes place are usually these :-Where the deceased has not left any valid testamentary deed, or the deed he has left does not appoint anyone as executor, or the person appointed executor refuses, or is, or becomes, incapable to act, or is abroad, or dies before completing his duties. 136. The Purpose of Appointing an Executor.-The office of an executor-dative is a trust for the purpose of collecting the moveable estate of the intestate, and after paying thereout the intestate's debts,(u) distributing the residue amongst those legally entitled thereto. The executor derives his power and authority solely from the Court, and he has otherwise no right or interest in the intestate's estate. An executor was held not entitled even to a commission for managing a farm, part of the executry estate.(v) 137. The Subjects of an Executor's Administration.These include all that fall to the deceased's widow, children, and next-of-kin, or personal representatives, and that belong to creditors.(w) The aggregate free estate receives the general name of executry, or free moveable estate. (x) 138. Executors-Different Classes.-Executors are distinguished in law as: Executors-dative-i.e., executors appointed by the Sheriff where none have been appointed by the deceased, or where those appointed by the deceased have refused or declined to accept the office, or are incapable of acting. Executors-nominate-i.e., those appointed by the deceased. Executors-creditors-i.e., persons who, upon the failure of the executors legally entitled by relationship or beneficial interest to expede confirmation, attach by the appropriate diligence of confirmation a portion of their debtors' estate out of which to recover the debt due to themselves.(y) Executors ad omissa male appreciata.-These are persons interested in the succession who are entitled to be confirmed to (u) Lamond's Trs. 8th March, 1871, 9 M. 662, (v) Malcolm, 10th Dec. 1869, 8 M. 272. (w) Ersk. 3, 9, 1; Bell's Com. 1, 141; M'Kie, 1628, M. 1788. (x) 18 Vict. c. 23, § 9. (y) A. of S., 14th Nov. 1679; Bell's Prin. § 1895. subjects which the proper executors confirmed have either omitted out of the inventory of the estate or have estimated in such inventory below their just value.(z) Executors ad non executa.-These are appointed in cases where the proper executor dies before obtaining possession of the deceased's moveables.(a) In the law language of England, executors-dative and executorsnominate are respectively styled administrators, and executors-testamentary, or merely executors. (b) 139. Who may be Executors-Dative.-Usually the relatives meet after the funeral and arrange that one or more of their number apply to the Sheriff for the office of Executor-Dative, but where no such arrangement is come to, the office is conferred by the Sheriff in the following order(c) :– 1. The deceased's general disponee, or universal legatory or residuary legatee under a testamentary writing. The nomination of a person as such disponee, legatory or legatee, is not of itself sufficient to confer the office of executor, neither will a grant of the liferent of a succession, with a power of disposal, entitle the liferenter to compete for the office with the next-of-kin or legatees of the reversionary interest. (d) But the term "executor" is not a vox signata which must necessarily be used in conferring the office. Thus the words "with power to see this will executed" was held to confer the office.(e) 2. The next-of-kin-i.e., surviving children, if any, or the other nearest relations, all in the same degree alive, with the representatives of deceased next-of-kin, if any, who survived the intestate(f)-being entitled to be conjoined in the office if they please, or they may select one person for the office.(g) When no next-of-kin compete, the children or descendants of next-of-kin predeceasing are entitled to confirm(h); and it is no objection to their being so confirmed that they have no beneficial interest in the executry (z) Ersk. 3, 9, 36. (a) M'Laren, § 1685. (b) Paterson, § 680. (c) M. Styles, 650. (d) M'Gown, 4th Dec. 1835, 14 Sh. 105. (e) Dundas, 27th Jan. 1837,15 Sh. 427. (f) 4 Geo. IV. c. 98, § 1. (g) Ersk. 3, 9, 32. Webster, 26th Oct. 1878, 16 S.L.R. 45. (h) 18 Vict. c. 23, § 1; Dowie, 18th March, 1871, 9 Macp. 726. |