funds.(2) The full blood excludes the half blood in the same degree.(j) Where the deceased has died unmarried and without issue, his father, or if he be dead, his mother, may, it appears, be nominated jointly with his brothers and sisters or their descendants.(k) In the succession of a deceased child the mother may be appointed in the absence of others having a preferable title.(7) All maternal relations, excepting brothers- and sisters-uterine, and their issue, are excluded.(m) Pupils who are next-of-kin may be decerned through a tutor, and minors in their own name or through a curator(n); or each may be decerned in his own name and act through his guardian, the tutor taking the oath in the pupil's case, and the curator concurring in the oath in the minor's case.(o) Under the Pupils Protection Acts, the Court may confirm a factor in his own name in relation to the estates of pupils, absent persons and persons under mental incapacity in Scotland.(p)

3. The widow who is called executrix qua relict. (q)

4. Creditors who hold liquid documents of debt-i.e., debts

constituted against the deceased either by a written obligation or by a decree of Court, as bonds, bills, decrees, or the like, called executors-creditors. (r) If the creditor's debt be not liquid he must proceed to constitute it in the usual. manner.(s) An office copy of judgment for debt in English Court is sufficient to warrant confirmation as executorcreditor.(t)

5. Special legatee, including the assignee of a beneficial interest.(u) Special legacies-i.e., of a sum of money or the like-vest by survivance, but confirmation is necessary to

(1) Bones, 21st Dec. 1866; 5 Macp. 240.

(j) Infra, §§ 128, 129.

(k) 18 Vict. c. 23, §§ 3 and 4; Bell's Lect. 1042.

(1) Muir, 3rd Nov. 1876, 4 R. 74. (m) 18 Vict. c. 23, § 5. This rule does not apply to the separate personal estates of wives, 44 & 45 Vict. c. 21.

(n) Swayne, 8th June, 1822; Johnstone, 15th Feb. 1838, 16 Sh. 541, 19 & 20 Vict. c. 59, § 19 ; 21 & 22 Vict.

c. 76, § 21; 23 & 24 Vict. c. 143, $38.

(o) Fraser, 2, 118.

(p) 12 & 13 Vict. c. 51; 43 & 44 Vict. c. 4.

(q) Muir, 3rd Nov. 1876, 4 R. 74. (r) Bell's Prin. § 1895; 1695, c. 41. (s) Infra, §§ 197, 198.

(t) Stiven, 12th Feb. 1868, 6 Macp.

370.

(u) M'Pherson, 7th Feb. 1855; 17 D. 358.

M

enforce payment. Specific legacies-i.e., of a particular debt, bill, bond, watch, or the like, can be recovered without confirmation.(v)

6. Judicial factors under § 7 of the Act of Sederunt, 13th Feb. 1730, may confirm factory estates in their own name as executors-dative.(w)

7. The estates of subjects of any foreign State, with which there is a convention, dying in Her Majesty's dominions may, if there be no person present at the time of the death who shall be rightfully entitled to administer, be administered by the consul, vice-consul, or consular agent of the foreign State in question.(x)

8. The Treasury Solicitor may administer any personal estate of an Intestate or otherwise accruing to the Crown.(y) 9. As regards a wife's separate personal estate, the order of legal preference to the office of executor to her is the same as above.(z)

It is competent to confirm two persons as joint-executors though claiming the office in different characters. (a)

Questions of competition may be appealed from the Sheriffsubstitute to the Sheriff-depute, and the judgment of the latter is subject to review by the Court of Session.(b)

Where the propinquity of an executor confirmed is challenged by a competing claimant, the proper remedy is an action of reduction of the testament-dative or confirmation.(c)

It has been held competent even after the lapse of seventeen months to repone a nearer relation claiming the office of executordative.(d)

140. What Courts may Appoint Executors.-The Court of the domicile(e) decides all questions between competitors for the office of executor.(f) Where the estate is situated furth of Scotland the office may be conferred either by the Court of the domicile

or by the Court within whose jurisdiction the subjects are situated and sought to be recovered, (g) and the Court in which proceedings are first instituted is entitled to act without reference to proceedings taken in another.(h) The lex loci determines the character of the property, and the title must be made up according to that law.(1)

are

141. The Manner in which Executors-Dative Appointed. The appointment is made in the order of legal preference already stated,(j) on a petition to the Sheriff of the county wherein the deceased died domiciled, or had his principal residence; and, in the case of persons dying domiciled furth of Scotland, or without any fixed or known domicile, having moveable estate in Scotland, to the Sheriff of the Lothians.(k) By the Sheriff-Court Act,() which came into operation on 1st Oct. 1876, the former Commissary Courts were abolished, and their whole powers and jurisdictions transferred to the Sheriff of each Court as the Commissary of such Commissariot, and the office of Commissary Clerk is also abolished in every case of a vacancy occurring after the date of the Act, except in the Commissariot of Edinburgh.

142. Suggestive Form of Petition.

Unto the Honourable the Sheriff of the Lothians, the petition of A. B., grocer, 100 George Street, Edinburgh.

Humbly sheweth,

That the late C. D., who resided at No. 100 Grange Road, Edinburgh, died there on the 26th day of May, 1882, and had at the time of his death his ordinary or principal domicile in the County of Edinburgh (or "furth of Scotland," or "without any fixed domicile," or "without any known domicile," as the case may be).

That the petitioner is the eldest son and one of the nextof-kin of the said C. D.;

or,

That the petitioners are the only surviving sons and daughters, and thus representatives of [name], who was a son, and one of the next-of-kin of the said C. D;

Whiffen,

(g) M'Laren, § 38; 12th June, 1872, 10 Macp. 797. (h) M'Cubbin, 3rd Dec. 1859, 22 D. 164.

(i) Monteith, 28th June, 1882, 9
(j) § 139.
[R. 982.

(k) 21 & 22 Vict. c. 56, § 3.
(1) 39 & 40 Vict. c. 70, § 35.

or,

That the petitioners are the sole surviving children of [name], son, and one of the next-of-kin of the deceased C. D., who predeceased him;

or,

That the petitioner is the widow [or the mother-if by the mother, it should be added that the deceased died without issue, predeceased by his father] of the said C. D.;

or,

That the petitioner is a legatee of the said C. D., under his will dated 26th May, 1883, an extract of which is herewith produced.

May it therefore please your Lordships to decern the petitioner executor-dative qua one of the next-of-kin [or qua representative of one of the next-of-kin, or qua children of a predeceasing next-of-kin, or qua widow, qua mother, or otherwise, as the case may be], of the said C. D.

According to justice, &c.

(To be signed by the petitioner or his agent).

In the Sheriff-Court of Edinburgh all petitions for the appointment of executors-dative and other applications to the Court must be written on foolscap paper and enveloped in cartridge paper for better preservation.

143. Lodgment of Petitions.-In the said Court, all petitions for the appointment of executors-dative must be lodged, along with two copies, with the Commissary Clerk before one o'clock of the Friday preceding the publication thereof by the Keeper of the Record of Edictal Citations in terms of § 4 of 21 & 22 Vict. c. 56, and which takes place on Monday weekly. Any document founded on in the petition must be lodged at the same time, or before the petition is called. In the Inferior Sheriff-Court, the lodgment of petitions will depend on the time within which the Rolls of Petitions can be transmitted to the Keeper of the Record of Edictal Citations.

144. Intimation of Petition.-Upon the petition being presented to the Sheriff, signed by the petitioner or his agent, the Sheriff- clerk shall intimate it in the manner prescribed by S 4 of the Act 21 & 22 Vict. c. 56, and afterwards write a certificate thereon in terms of § 44 of the Sheriff-Court Act of

1876, that the same has been duly "intimated and published in terms of the Statute."

145. Decerniture on Petition.-On the expiration of nine days after the Sheriff-clerk shall have endorsed a certificate of publication on the petition, the petition may be called in Court, and, if there be no competing petition, the petitioner obtains what is termed a decree-dative, which is the technical name given to the sentence of the Judge conferring on the petitioner the office of executor, and is precisely equivalent to a nomination of an executor by the deceased himself.(m)

146. Publication of Confirmation.-It is the duty of the Commissary Clerk of Edinburgh to publish annually, on 31st December, a printed calendar of all confirmations and inventories passed in Scotland during the year preceding, specifying in each case the name of the deceased, date of death, amount of estate and other particulars, and such calendar may be inspected by the public on payment of a small fee in the office of every Sheriff-clerk in Scotland.(n)

147. Extract of Decree-Dative and its Effects.-Decreesdative are extractable on the expiration of three lawful days after they have been pronounced. The decree enables the appointee as executor-dative to enter into possession of the deceased's moveable estate in order to exhibit upon oath, in the proper SheriffCourt, an inventory of the deceased's moveable estate, as provided by the Revenue Acts.(o) But, to vest the estate contained in such inventory fully in the executor, and to give him a complete active title thereto,―e.g., to enable him to compel payment of debts due to the deceased, or to compel persons in possession of moveables which belonged to the deceased to give up possession,— he must obtain what is technically termed a testament-dative or confirmation. He may, however, sue and be sued in any Court before obtaining confirmation, although he will require that title before he can enforce payment to him. He may raise the action upon an extract of the decree-dative.(p)

148. Procedure in Competition for Office of Executor.Where a second petition is presented in reference to the same personal estate, intimation thereof must be given by the Sheriff

(m) 21 & 22 Vict. c. 56, § 6.
(n) 39 & 40 Vict. c. 70, § 45.

(0) Ersk. 3, 9, 27.

(p) Ersk. 3, 9, 30.