resided at No. there on 1st January, 1883. Humbly sheweth, Street, Edinburgh, and died That by decree of your Lordship, dated 1st February, 1883, the petitioner was decerned executor-dative qua one of the next-of-kin (or otherwise as the case may be), to the said deceased C. D., and has since exhibited upon oath, in your Lordship's Court (or now produces), an inventory of the personal estate of the said deceased amounting to £ That before the petitioner can acquire the title of testament-dative it is obligatory on him to find caution for his intromissions as executor, and he being unable to find caution for the full amount of the inventory, he is desirous of having the caution restricted. That the greater portion of the claims lodged with the petitioner against the estate of the said deceased C. D. have been discharged, and that this application is made with the concurrence of C. F. and G. H., who are, along with the petitioner, the sole next-of-kin of the said deceased. May it therefore please your Lordship to direct intimation of this petition to be made in such form as to your Lordship shall seem proper, and thereafter to restrict the caution to be required of your petitioner to £ sterling, or to do otherwise in the premises as to your Lordship may seem expedient. According to justice, &c. 187. Suggestive Form of Newspaper Advertisement.THE ESTATE OF C. D. DECEASED.-Notice is hereby given, in pursuance of an order by the Sheriff of the County of that a petition has been presented to him by the executor-dative of C. D., who died at on 1st January, 1883, for restriction of the caution required by law to be found by such executor, to the sum of and that if no objection be lodged with the Sheriff-Clerk curt., the Sheriff will thereafter £ 9 of the said County by the dispose of the petition. J. P., S.S.C., Edinburgh, 188. Testament-Dative. This is the equivalent of the title testament testamentar,—the former being applied to the confirmation of the executor of a person who has died intestate, and the latter to the confirmation of the executor of a person who has died testate(y). (y) Ersk. 3, 9, 27; 21 & 22 Vict. c. 56, Sch. D and E. Before the former title (the purpose of which is indicated in the following section) can be issued, the executor must (1) have been decerned executor-dative by the Sheriff(2); (2) have lodged in Court an inventory of the deceased's whole personal estate, with relative affidavit(a); and (3) have found caution(b). The title is then procured by the executor-dative producing to the Sheriff his extracted decree-dative, or referring to his decree as on the records of the Court, along with any testamentary deeds or writings left by the deceased, and the said inventory of his estate. These papers are thereupon recorded in the Court books, and on the expiration of three lawful days from the date of the decree-dative(c) a testament-dative or confirmation of the executor is given by the Court, authenticated by its seal and the Clerk's subscription(d). This title has a retroactive effect on the acts of an executor(e). No execution can follow on a decree obtained by an executor without a proper confirmation(ƒ). A debtor paying to next-ofkin or executor unconfirmed may be compelled to pay a second time if it should afterwards appear that the receiver had not the substantial right to the money, or that the legal right to uplift the money was vested in another(g). But the general rule is subject to the exceptions to be afterwards noticed (h). 189. Form of Testament-Dative. This document is usually in the form of the confirmation annexed to the Act 21 & 22 Vict. c. 56, which is as follows: I, A. B., Sheriff of the county of [specify county], considering that by my decree, dated [specify date], I decerned C. D., executordative qua next-of-kin [or other character, as the case may be], of the late E. F., who died at [specify place], on [specify date], and seeing that the said C. D. has since given up on oath an inventory of the personal estate and effects of the said E. F. at the time of his death situated in Scotland [or situated in Scotland and England, or in Scotland and Ireland, or in Scotland, England, and Ireland, as the case may be], amounting in value to pounds, which inventory has been recorded in my Court books, of date [specify date], and that he has likewise found caution for his acts and intromissions as executor: Therefore I, in Her Majesty's name and authority, make, constitute, ordain, and confirm the said C. D. executor-dative qua [specify character] to the defunct, with full power to him to uplift, receive, administer, and dispose of the said personal estate and effects, and grant discharges thereof, if needful to pursue therefor, and generally every other thing concerning the same to do that to the office of executor-dative qua [specify character] is known to belong; providing always that he shall render just count and reckoning for his intromissions therewith when and where the same shall be legally required. Given under the seal of office of the Commissariot(i) [specify county], and signed by the Clerk of Court at [specify place], the [specify date]. To be signed by the Commissary Clerk or his depute,(j) and sealed with the seal of office. 190. Eik to Testament-Dative. In certain circumstances already explained,(k) an additional inventory falls to be given up. Where this is the case, the additional estate has to be added or eiked to the testament-dative, and this is usually done in the following form FIRST EIK TO THE TESTAMENT-DATIVE OF UMQUHILE C. D., Grocer, who resided at No. Glebe Street, Edinburgh.-The said C. D. had pertaining and resting owing to him at the time of his decease. (For additional inventory confirmed, vide "Record of Inventories," vol. , page .) I, ARCHIBALD DAVIDSON, Esquire, Sheriff of The Lothians, considering that by my decree, dated I DECERNED O. M., builder, residing at qua George Street, Edinburgh, executor-dative of the said C. D., who died at Edinburgh, on 1st January, 1883, and that the said O. M. gave up an inventory of the personal estate and effects of the said C. D. on 1st February, 1883, and expede a testament-dative upon 1st March, 1883: And seeing that the said O. M. has now given up, on oath, an additional inventory of the personal estate and effects of the said C. D. at the time of his death, including the proceeds accrued thereon to date of oath, situated in Scotland, amounting in value to which additional inventory, as before written, has been recorded in the (i) Still competent to affix this seal, notwithstanding abolition of Commissary Court, 39 & 40 Vict. c. 70 (1876), (j) Or Sheriff-clerk or his depute, 39 & 40 Vict. c. 70, § 28. (k) § 172. Court books of the Commissariot of Edinburgh, of date and that he has likewise found caution for his acts and intromissions as executor: THEREFORE I, in Her Majesty's name and authority, of new MAKE, CONSTITUTE, ORDAIN, and CONFIRM the said O. M. executor-dative qua to the defunct, with full power to him to uplift, receive, administer, and dispose of the said personal estate and effects, contained in the foresaid additional inventory, grant discharges thereof, if needful to pursue therefor, and generally · every other thing concerning the same to do that to the office of executor-dative qua is known to belong: Provided always that he shall render just count and reckoning for his intromissions therewith, when and where the same shall be legally required. Given under the seal of office of the Commissariot of the County of Edinburgh, and signed by the Clerk of Court at Edinburgh, the 1st May, 1883. 191. Where Property Partly in England or Ireland. Where the deceased had personal estate in England or Ireland, as well as in Scotland, the executor may obtain a title to the English or Irish estate by production of the Scotch testament-dative in the principal Court of Probate in England, or in the Court of Probate in Dublin. A copy of the testament-dative falls to be deposited with the registrar. Formerly a certified copy of the interlocutor of the Commissary finding that the deceased died domiciled in Scotland, fell also to be sent to the registrar; but this is not now necessary if the inventory of the estate states the domicile of the deceased(l). The testament-dative will thereupon be sealed with the seal of such English or Irish Court and returned to the person producing the same, with the following marking thereon by the registrar: "Let this confirmation be sealed with the seal of Her Majesty's Court of Probate in England (or Ireland as the case may be) pursuant to the statute 21 & 22 Vict. cap. 56, § 12 (or § 13), London, the 1st day of February, 1883"; and such confirmation shall thereafter have the effect of Probate in England or Ireland respectively.(m) It is competent to so seal an additional confirmation whether the original confirmation shall have been sealed or not, and although the additional confirmation shall not contain any estate of the deceased situated in Scotland.(n) 192. What Property requires to be Confirmed.-Excepting See also § 233, (1) 39 & 40 Vict. c. 70, § 41. (n) Ibid. § 42. infra. in the case of executor's creditor, as afterwards noticed, (o) every person requiring confirmation must confirm the whole moveable estate of the deceased person, to which such person shall make oath(p). With regard to personal estate situated in England, it would appear that formerly the Court of Probate would only seal a confirmation which included the whole of the deceased's personal estate in that country(q). But by the Sheriff-Court Act, 1876, (r) it is provided-" When an additional inventory has been given in and recorded, and confirmation granted in a Sheriff-Court in Scotland, of estate situated in England or Ireland of a person who died domiciled in Scotland, and the additional confirmation shall be produced in the principal Court of Probate in England, or in the Court of Probate in Dublin, as the case may be, and a copy thereof deposited with the registrar of the Court, such additional confirmation shall be sealed with the seal of the Court and returned to the person producing the same, and that whether the original confirmation shall have been sealed with the seal of the Court or not, and although the additional inventory confirmed shall not contain any estate of the deceased situated in Scotland, and such additional confirmation when so sealed shall thereafter have the same force and effect as if probate or letters of administration, as the case may be, had been granted by the Court of Probate in which it had been sealed." 193. Confirmation quoad omissa et male appreciata.—If the whole succession be not given up in the inventory, the executor or any one interested may apply to the Sheriff to have the omission rectified (s). Confirmations of this kind are almost unknown in practice, except in the case of executor's creditors who, as afterwards noticed (t), are entitled to expede a partial confirmation. 194. Confirmation quoad non executa.-This title does not apply to the case of an executor-dative, but to the case of an executor-nominate who dies before he has disposed of the whole of the estate in his confirmation. 195. Cases where Confirmation unnecessary. In the following cases confirmation is not required to complete the executor's title : (0) $196. (p) 4 Geo. IV. c. 98, § 3. (q) Hutcheson, Jour. of Jurisprud ence, 1864, vol. viii. p. 55. (r) 39 & 40 Vict. c. 70, § 42. (t) § 196. |