Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. V.

Diligence prestable by Executors.

Peebles
v.
Knight

Date: 18 June 1629
Case No. No 27.

Found as above.

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The relict of a defunct pursuing the executor confirmed for her own third of certain particular goods belonging to the defunct, her husband, omitted out of the defunct's testament, confirmed by the said executor, and which omitted goods were known to the said executor, and were purposely omitted unconfirmed by him; in respect of which omission scienter done, albeit the goods were not intromitted with by the executor, the relict claimed her third thereof from the executor, as debtor therein. This action was not sustained upon that ground of omission, it not being libelled that the executor had intromitted with the said goods; seeing the executor could not be compelled to give them up in testament, or confirm them, but might confirm or omit them as he pleased, and the relict might seek a dative thereto ad omissa, if she pleased, and thereby claim right to the same, or otherwise pursue the intromitters for the third thereof.

Fol. Dic. v. 1. p. 239. Durie, p. 446.