A legacy of a particular sum payable out of a certain subject, which was found to be heritable, was sustained notwithstanding against the executor; this being understood demonstrative only, not taxative.
Click here to view a pdf copy of this documet : PDF Copy
David Drummond deceasing in England, and leaving Archibald Drummond his executor, left in legacy L. 50 Sterling to be given to Patrick Drummond out of the readiest of the sums owing to him by the Laird of Spot. He pursues the executor, who alleged he ought not to pay him, because the sums owing by Spot were heritable, and so belonged to the heir.——The Lords found, That the wrong destination of the money should not frustrate the legatar, especially the pursuer offering him to prove that the executor had intromitted with as many moveables as would satisfy the same.
Fol. Dic. v. 1. p. 145. Spottiswood, p. 194.*** Durie reports the same case:
In an action Drummond contra Drummond, one David Drummond in his testament leaves the sum of L. 1000 in legacy to a legatar, to be paid out of another particular sum owing to the defunct, which sum, out of which it was left to be paid, was heritable; and thereupon the executor, who was convened for payment thereof, defending himself, that he ought not to pay it, being destinate out of an heritable sum, which was not testable;——The Lords found, That albeit the legacy could not receive effect, by payment out of that sum particularly, yet nevertheless that the legacy remained good, to affect the defunct's other moveables with the payment thereof, if he had as many as might satisfy the same; and therefore admitted to the pursuer to prove, that there was more moveables left by the defunct, and intromitted with by the executor, than might satisfy the foresaid legacy.
