1. Where the executor or next-of-kin, or other representative, obtains actual possession of the fund or estate.

2. Where a debtor is willing to pay or deliver without the exhibition of confirmation.

3. Where the deceased executed a special assignation or disposition, though not intimated or published during the deceased's lifetime.

4. Where in a personal bond the substitute is named,-the right vesting by his mere survivance of the institute.

5. Jus relicta and legitim vest in the widow and children ipso jure; also the husband's claim on his wife's death to a share of her personal estate, but the parties can only recover from the deceased's debtors through the medium of the executors(u); and

6. Where the executor has to sue for a doubtful claim, it is sufficient to expede confirmation before extracting the decree(v).

196. Confirmation by Executors' Creditors of Intestate.Confirmation in this character may be obtained to the effect of administering only to so much of the property as may be sufficient to pay the creditors' debt. The title is regarded rather as diligence than as a proper title of administration, (w) or as simply creating a burden or nexus upon the subject confirmed.(x) Confirmation as executor-creditor was held preferable to an arrestment prior in date(y). The necessity for such an appointment arises only when no person represents the deceased against whom an action might be instituted, or where the executors confirmed have omitted or undervalued part of the deceased's effects in their confirmation(z). Where diligence is begun in debtor's lifetime, and has attached part of his funds, it may be prosecuted by the creditor without obtaining confirmation(a). After the next-of-kin have partially confirmed, a confirmation as executor-creditor ad omissa is the only valid diligence by which the remainder can be attached, seeing that the omitted funds remain in bonis of the deceased.(b) An executor-creditor, although not confirmed, has a good title to sue, (c) and when his title is unchallenged, he need not in suing

(u) Bell's Lect. p. 1049; Bell's Prin. § 1892.

(v) Lee, 17th May, 1816, 19 F.C. 118,

4 Geo. IV. c. 98.

(w) Ersk. 3, 9, 34; 1695, c. 41.

(y) Wilson, 26th June, 1823, 2 S. 430. (*) M'Laren, § 1675.

(a) M'Laren, § 1676.

(b) Aitkinson, 14th Jan. 1808, 14 F.C. 76.

(x) Smith, 27th June, 1862, 24 D. (c) Maitland, 23rd Nov. 1827, 6 S.

produce his grounds of debt.(d) An executor-creditor must find caution in the same way as an executor-dative, and he may also in like manner apply to have the caution restricted(e).

197. Procedure where Creditor holds a Liquid Document of Debt.-The applicant presents a petition as in other cases of executry-dative, but his petition must be intimated in the Edinburgh Gazette(f) at least once immediately after the application is made, and a copy of the Gazette produced before the confirmation can be further proceeded in. Like other executors, he must give up the whole estate in his inventory, and pay corresponding duty, although his confirmation and the caution to be found by him may be restricted to the sum or value of the estate which he confirms.(g) The document of debt may be a bond or bill by the deceased or the extract of a decree of Court against him. office copy of an English judgment for debt was held a sufficient document of debt.(h)

An

198. Procedure where Creditor holds an Illiquid Document of Debt.-The creditor may charge the nearest of kin of the deceased to confirm executor to him within twenty days, which charge shall be a passive title against the person charged, as if he were a vitious intromitter, unless he renounce the succession; in which case the charger may proceed to have his debt constituted, and the hæreditas jacens of moveables, i.e.-moveables which have vested in the deceased and which have not been transferred to his legal representatives, declared liable by a decree cognitionis causa.(i) It would appear that a charge is not necessary where the creditor restricts his demand to a claim for decree cognitionis causa tantum-i.e., for the sake of constituting the debt. On obtaining decree, the creditor may apply by petition to be confirmed. If an heir has not taken up the estate and has renounced to be heir, he cannot be held to be personally liable(j.) And if the next-of-kin take no notice of the charge to confirm, and are afterwards proceeded against as vitious intromitters, they may still escape personal liability by lodging a minute of renuncia

(d) Dickson, 27th May, 1828, 6 S.

856.

(e) §§ 182, 185.

(ƒ) 4 Geo. IV. c. 98.

(g) Bell Lect. 1046.

(h) Stiven, 12th Feb. 1868,6, M. 370.

(i) 1695 c. 41; 4 Geo. IV. c. 98; for procedure see Greig, 1 Mar. 1837, 15 Sh. 697.

(j) Forrest, 26th May, 1863, 1 Macph. 806; Bell's Lect. 1047.

tion, but they will be liable to the creditor in the expense of such proceedings.(k)

199. Conjunction of Creditors in Executorship.—A decreedative as executor-creditor, not followed by confirmation, does not exclude other creditors from being confirmed and conjoined. All creditors properly qualified may ask to be conjoined in an application for confirmation so as to participate equally in the estate to be confirmed, () or the creditor confirmed may be summoned by the others to communicate(m); all creditors using legal diligence within six months after the deceased's death are entitled to share pari passu on the fund confirmed by them, the posterior creditors sharing the expense incurred by the creditor first confirmed.(n).

200. Reduction of Confirmation by Creditors.-Confirmation by creditors may be reduced by sequestration within seven months from the debtor's death. The Bankruptcy Act provides that where the estate of a deceased debtor is sequestrated within. seven months after his death, any preference or security for any prior debt acquired by legal diligence on or after the sixtieth day before the debtor's death, or subsequent to his death, and any preference or security acquired for a prior debt by any act or deed of the debtor which has not been lawfully completed for a period of more than sixty days before his death, and any conformation as executor-creditor after the debtor's death, shall, in these several cases, be of no effect in competition with the trustee. But the creditor so deprived of his diligence or conformation shall have preference for the expenses incurred to him in such diligence or confirmation.(o)

201. Confirmation by Creditors of Next-of-Kin of Intestate. Where the next-of-kin of the deceased do not enter to the succession so that their creditors cannot attach the executry to which they are entitled, such creditors can either require the Procurator-Fiscal to confirm and assign the estate to them, or they can obtain themselves decerned executors-dative to the deceased as if they were his creditors. But a preference is reserved to the

(k) Davidson v. Clark, 13th Dec. 1867..

(1) Willison, 17th Dec. 1840, 3 D. 273.

(m) A. of S. 28th Feb. 1662.

(n) Macdowal, 19th Feb. 1742, M. 3936; Bell's Prin. § 1900.

(0) 19 & 20 Vict. c. 79, § 110.

creditors of the deceased doing diligence within a year and a day of the death,(p) if not now for a longer duration.(q)

202. The Granting of Confirmation regulated by Situation of Property.-While it is the function of the law of the domicile to point out the intestate's next-of-kin(r), to decide their legitimacy(s), and to regulate the succession to and distribution of the moveable estate, the questions whether the special title of administration or confirmation be requisite to vest the interest, and what security will be required by the executor administering, fall to be determined by the law of the situs or where the specific estate is locally situated.(t)

203. Where Joint Executors Appointed.-When two or more persons are confirmed executors they form a species of society, and it would be imprudent to pay to one unless the others are parties or consenting to the payment.(u) In suing the deceased's debtors all the executors must concur unless it can be shown that any refuse without good cause.(v) Where two out of six executors became bankrupt, the remaining four executors were found entitled to sue without the concurrence of the others.(w) Executors qua next-of-kin are entitled to sue separately for their own shares of the succession.(x) The office on the death of one devolves on the survivors and falls entirely on the death of the survivor, except in cases where the appointment was purely beneficial.(y) Where one or more of the executors acquire an English domicile they remain, it would seem, amenable as executors to the jurisdiction of the Scottish Courts.(z) Where at least the executor is still administering the estate the Scotch Courts have jurisdiction, and it is even thought that where the administration in Scotland has been completed, the executor remains amenable to the Scottish Courts as regards accounting for the estate, (a) but a mere appointment as executor is not sufficient per se to render him amenable. (b)

Where two out of five executors, who had jointly confirmed as executors in a Scotch executry, were abroad, an action was allowed to proceed in Scotland against the remaining three.(c)

204. Duties of an Executor.-The first duty of an executordative, after he shall have been appointed, is to realise the executry. estate. He should lose no time in obtaining confirmation, if confirmation be necessary, and after having qualified himself, it is his imperative duty to reduce into possession the whole of the deceased's available means and estate with a view to distribution.(d) In discharge of this duty, he is bound to take all proper measures, legal and otherwise, but not to engage in fruitless litigation(e); he is bound to deposit in bank, in an account in name of himself as executor, all monies due to the deceased as received,(ƒ) but he cannot be compelled to distribute the estate among the next-of-kin, or to pay any debts thereout, except preferable debts, till the expiration of six months from the death.(g) He is not entitled to pay the next-of-kin without first paying or providing for the payment of all the deceased's debts, (h) nor is he entitled to debit himself with any commission for managing the estate. (1)

The executry estate should be kept clearly distinguishable from the executor's own property, to prevent his creditors interfering with it in case of his bankruptcy.

The executor must exhibit in the proper Court, upon oath, as already indicated(j), an inventory of the personal estate, duly stamped, and thereafter the debts and government duties fall to be paid.

Certain debts are preferable on the deceased's estate and may be paid by the executor without waiting the expiration of the six months, and without decree. The following may be so paid :

1. Sick-bed and funeral expenses, including physician's fees, medicines, and surgeon's accounts, with the expense of mournings for the widow, and such decorations and state in the funeral as the rank and circumstances of the deceased warrant; but the wife's funeral expenses are not preferable over the husband's estate. (k)

(c) Wick, 11th Dec. 1849, 12 D. 299. (d) Muir, 3rd Nov. 1876, 4 R. 74. (e) More's Executors, 24th Jan. 1835, 13 Sh. 313.

(f) M'Laren, § 1974.

(g) Gardner, 28th Nov. 1810, 16 F. C. 59.

(h) Lamond, 8th March, 1871, 9 M. 662.

(i) Malcolm, 10th Dec. 1869, 8 M. 272.

(j) § 149 et seq.

(k) Bell's Prin. §§ 1403, 1900; Bell's Com. 2, 149.