[1628] Mor 3493
Subject_1 DILIGENCE.
Subject_2 SECT. V. Diligence prestable by Executors.
Date: Pool
v.
Morison
2 December 1628
Case No.No 26.
The nearest of kin confirming some of the defunct's moveables, is not liable tho' he knowingly omits others; for this debars no party having interest, as such may confirm ad omissa.
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A legatar pursuing an executrix for payment of a particular legacy of sheepskins, cairsays, and some money addebted to the testamentar, by his debtor designed in the testament, and which he gave special power to the legatar to seek and pursue for himself; which testament of the defunct's, bearing this particular, being confirmed by the executrix, that debt was not given up by her in the inventory of the defunct's goods, but was omitted to be confirmed, albeit the body of the nomination bearing the legacy thereof, was confirmed, as it proported; and the relict being pursued by the legatar for payment thereof, it was found that she was not subject to pay the same, and that her omission could not put her in mala fide, seeing it might be omitted as a desperate debt; and her not doing of diligence was not imputed to her, seeing power was given by the
testament to the legatar to pursue, albeit there were 16 years past since the defunct's decease, during which time no diligence was done; but the Lords found the executrix should confirm the particular legacy, and eik the same to the inventory, and make the legatar assignee thereto, or lend her name to pursue therefor; and that she should warrant that debt from her own deed, et præstare tantum factum suum, and the legatar should have the expense of this pursuit paid to him by the executrix, off the first end of the free goods and gear, and that the executrix was no further obliged to any legatar in the like case, viz. in legatis nominum vel corporum, et ejusmodi aliis legatis particularibus et circumscriptis. Act. Aiton. Alt. Cunningham. Clerk, Gibson.
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