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A father leaves a legacy to his son, who was out of the country in the easter seas the time of making the legacy, and failing of his son by decease, he leaves it to his daughter. The legacy was 600 merks, addebted to the defunct by bond of a debtor, who, supposing the first legatar to be dead, made payment of the annualrent to the sister, being the second person substituted in the legacy, for the space of 10 or 12 years. Thereafter being pursued to make payment of the principal sum to the sister, alleged, That he could not be in tuto to make payment of the principal sum to her, except she proved that her brother was dead. The Lords would not astrict her to this hard probation, but ordained her to find caution to warrant the defender at all hands.
