John Bisset and his Curators v. John and Robert Bisset
Date: 20 February 1627 Case No. No 2.
An universal legatee found entitled to prosecute the debtor, although there was an executor confirmed.
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Umquhile George Bisset, by his latter will, leaves an universal legacy of all his moveable goods to John Bisset, his brother's grand-child, and nominates John Bisset, his brother's son, father to the legatar, executor. Afterwards, John, the executor, by contract and appointment between him and Mr Robert Bisset, divides the whole moveable goods of the executry between them, by virtue whereof, Mr Robert intromitted with the just half thereof; whereupon the friends of the mother's side to the said legatar, finding him prejudged by this transaction, raised a summons at the grand-child's instance, and their own, as curators to him, against his father (who was executor confirmed) and Mr Robert, to hear and see the foresaid contract rescinded, as being super re aliena, and also to pay and deliver the particular goods intromitted with by them, back to the grand-child to whom they appertained by virtue of his universal legacy. Excepted, 1mo, by Mr Robert, No action against him as intromitter, because the said John was executor confirmed before the intenting of the cause. 2do, The contract being made between them two majors, could not be annulled. Replied, 1mo, The legatar being rei legatæ dominus, hath action competent to him, either against the executor actione personali, or the possessor rei vindicatione. 2do, Albeit the parties contractors could not pursue the reduction of the contract, being both majors, yet the minor super cujus re contraxerunt, and in whose prejudice they had divided his gear, might quarrel it lawfully. “The Lords repelled the exception, and sustained process against the possessor Mr Robert, notwithstanding of an executor confirmed; as likewise found, he might lawfully quarrel the contract, in so far as it did prejudge him allenarly.
Spottiswood, (Legacies.) p. 194.
*** Durie's report of this case is No 28. p. 3846, voce Executor.
