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Scottish Court of Session Decisions >>
Farquhar v Paton. [1709] Mor 3833 (15 July 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0903833-015.html Cite as:
[1709] Mor 3833
If an executor pay a composition for debts due by the defunct, he is bound to communicate the cases to the creditors.
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Captain Farquhar being a creditor of Andrew Logie of Loanhead, pursues Anna Paton, his relict, as executrix, for payment; and she offering to prove exhausted by payment of true and lawful debts before his citation; he replied, you got eases and abatements of sundry of these sums, for which you must count to me; and they being deduced, there will be a superplus, which ought to be made forthcoming to me, seeing an executor is no more than a fiduciary for the use and behoof of the creditors, legatars, relict, and nearest of kin, allowing their own share, viz. the third of the dead's part given them by law for their pains in executing the office; and for this very end they give up inventory, and find caution. Answered, Esto I had got eases, I am not bound to communicate them to you; for if the creditors, out of compassion to me, a poor widow, and my fatherless children, have given me the favour of an ease, they nowise intended it should accresce to you, in whom they were not concerned; and, if they thought it would have gone that way, they would not have given it; and what hinders them on personal respects and considerations to have gifted the executor a part of their sums, shall that donation belong to you? The Lords ordained the Reporter to hear the parties on what motives the eases were given; for, if a creditor, to get timeous and ready payment, give the executor an ease, without regard or design of a favour, they thought a posterior creditor might claim the benefit of that ease; but if it was on personal respects or considerations it would be otherwise.
Fol. Dic. v. 1. p. 276. Fountainhall, v. 2. p. 516.
