Scottish Court of Session Decisions

Subject_1 LEGACY.

Phin
v.
Guthrie

Date: 15 June 1738
Case No. No. 5.

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One executor nominated deponed, that when the testament, naming him executor, and giving the pursuers certain legacies, was signed, the testatrix told him, and he believed, “that after payment of the legacies there would be something over more than a sufficient gratification for his pains, and he understood he was to have no more than a reasonable gratuity for his pains,” though the surplus over the debts and legacies should happen to be more; that he told the Lady Northberwick, by whose advice the defunct settled her affairs, that after receiving a proper gratuity to himself, he was willing to dispose of the surplus as the Lady should direct, because he understood the defunct's will to be such; and the Lady North-berwick by a writing during the process, ordered the said surplus to be distributed among the pursuers in proportion to their respective legacies, because she knew that was the defunct's will and intention: The Ordinary, in respect that the pursuers were not nearest of kin, found the executor liable only for the legacies in the testament, because there cannot by our law be nuncupative legacies above L.100 Scots: But the Lords found him liable to account in terms of his oath, ex parte, indeed, because the executor would not answer;—but the petition distinguishes ingeniously enough in that point betwixt legacies and fidei-commissa.