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There was a legacy of 600 merks left to William Ruthven in anno 1611, who was then in the eastern seas, and failing of him to Isabel his sister. Forrester, executor confirmed to Isabel his wife, pursued Clerk, in whose hands the money was, for the bygone annualrents thereof, and principal sum also. Alleged, The libel could not be sustained, because he had not libelled that William was dead, failing of whom only the sister was substitute, so that unless he offered to prove that the said William was dead, he could have no right as executor to his wife. The Lords sustained the libel, in respect there was no other appearance but he was dead, having been so long absent, and no word of him all that time, the pursuer finding caution to warrant the defender at all hands; for it would have exhausted the whole sum to have led probation of his death besides that it could very hardly be proved.
Fol. Dic. v. 2. p. 163. Spottiswood, (Summons & Libel.) p. 319.
*** Durie's report of this case is No 8. p. 482. voce Annualrent, and Auchinleck's No 3. p. 8048. voce Legacy.
