Scottish Court of Session Decisions

Subject_1 LEGACY.

Kinloch
v.
Lundie

1663. July.
Case No. No 7.

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Robert Lundie, by his latter will, nominates Mr Thomas and Robert Lundies his executors, and leaves in legacy to Mr Robert Kinloch, a sum of money due to the defunct by Sir Robert Fletcher; for which legacy Mr Robert pursues his executors. It was alleged for the Executors, That they cannot be liable, because it is speciale legatum, due by such a bond, whereunto the executors cannot have right as executors, because the sum is heritable, and so not liable to a legacy; no more than if he had left such a thing in arca, which was not in rerum natura; in which case, periculum est legatarii. To the which it was answered, That a legacy of this nature, viz. a debt which is heritable, is as if it had been legatum rei alienæ in which case, by the law, hæres tenetur luere, secundum vires inventarii; and, therefore, if there be free moveables, the legacy should be made good.

Which the Lords found accordingly.

Gilmour, No. 87. p. 67.