If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ewart v Creditors of Newlaw. [1738] Mor 3827 (8 November 1738)
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor0903827-008.html
Cite as: [1738] Mor 3827

[New search] [View without highlighting] [Printable PDF version] [Help]


[1738] Mor 3827      

Subject_1 EXECUTOR.
Subject_2 SECT. II.

Form of Confirmation.

Ewart
v.
Creditors of Newlaw

Date: 8 November 1738
Case No. No 8.

Click here to view a pdf copy of this documet : PDF Copy

A wife being confirmed executrix qua nearest of kin, the husband, who was also conjoined in the confirmation, for his interest, did, after his wife's decease, lead an adjudication upon one of the bonds confirmed. Many years thereafter, in a competition of creditors, the adjudication was objected to, as deduced by a person who had no right to the debt, the husband being only confirmed for his interest, which was at an end by the death of his wife. When the question came before the Lords, an inquiry was ordered into the practice of the Commissary Court, with regard to the confirmation of married women. It was reported as the practice of that court, for the wife only to be confirmed; and upon this the adjudication was sustained, seeing it appeared that the husband was confirmed joint executor with his wife, and the office behoved to accrese to him after her decease. See Appendix.

Fol. Dic. v. 1. p. 272. *** Kilkerran reports the same case:

Where a wife was confirmed executrix, and her husband for his interest, the husband, notwithstanding that adjection ‘for his interest,’ was found to be joint executor; and an objection made to an adjudication repelled, that the decree of constitution had been obtained only in name of the husband, in respect he being joint executor, and the wife dead, when the constitution was pursued, the whole office accresced to him.

The Lords having at first differed upon this, ordered an inquiry to be made into the practice of the Commissary Court; and it appearing that the practice uniformly was for the husband to give up the inventory in behalf of the wife, and she to be confirmed only, and not the husband, but only the powers of intromitting to be given to the wives and husbands for themselves and their interests, they found as above, the husband being in this case confirmed executor, though with the adjection of ‘for his interest.’

Kilkerran, (Executor) No 4. p. 172.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor0903827-008.html