Scottish Court of Session Decisions

Subject_1 LEGACY.

Mr Francis Wauchop of Kackmure, Advocate,
v.
William Wilson, Merchant in Edinburgh

Date: 3 July 1724
Case No. No 21.

When a special legacy is appointed to be paid out of a particular fund, the executors are not liable if the subject should perish.

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William Wilson, the defender's grandfather, in his latter will and testament, anno 1659, named his infant sons his executors and universal legatars; and appointed his wife, and some other friends, tutors to the children.

In this testament, he left 20 merks yearly to his sister Margaret, during her lifetime, and likewise a very considerable legacy to his wife, which he expressly burdened with the payment of all his debts, and of the annual legacy to his sister; and the wife subscribed the testament with the husband.

Anno 1661, the tutors confirmed the testament; and the merchant goods, and others bequeathed to the wife, were given up in inventory.

Mr Wauchop having acquired right to Margaret's legacy, insisted against Mr Wilson, as representing his father and uncle, the executors, upon the passive titles, for payment of the annual legacy, due for many years; and contended, That an executor was obliged to execute the testament, by paying the debts and legacies, so far as the inventory does extend; and, in this case, the testament was confirmed in name of the children, and the goods, and others specially legate to the wife, were given up in inventory; and, therefore, the defender ought to be liable in payment of this legacy, which was a burden upon the wife's; 2do, That legacies, especially to near relations, were so favourable, that, should a testator legate a res aliena, the executors would be obliged to purchase it for the behoof of the Iegatar; 3tio, That, in this testament, the relict was burdened with the payment of his debts as well as legacies; and, as the creditors would have action against the executors, and not be left to make out their payment from the relict, so must the pursuer, whose claim was equally a burden on the executry; and, as to them both, the obligation upon the relict was no more than an accessory security.

It was argued for the defender, That, when a special legacy is appointed to be paid out of a particular fund, the executors cannot be liable, if the subjects should perish; because, the legatar ought to have secured himself, before the fund of his payment was dilapidated; and though, in the present case, the executors had confirmed the relict's legacy, (which was occasioned from the custom at that time, that the Commissaries would not admit of a partial confirmation,) yet she continued in possession of the goods, and for some years regularly paid the legacy pursued for, which appeared from a discharge in process.

As to the argument from a legatum rei alienæ, and from the relict's being burdened with the payment of debts, it was answered, That the first could not be regarded, unless the pursuer could allege, that the testator had not left as much to his relict as would have paid this and the other legacies; nor could the second, because, debts became a burden ex lege, and the debtor's whole effects are subject to the payment of them; whereas, legacies are only ex voluntate testatoris, and the rules prescribed by him are precisely to be observed, and they payable out of such funds as he had allotted for them.

The Lords having considered the discharge produced, granted by the pursuer's author to the relict, assoilzied the defender.

Act. Ipse. Alt. Jo. Horn. Edgar, p. 67.