A legacy ad pios usus, suffers a proportional deduction, if the funds be not sufficient for all the legacies, unless the legacy ad pios usus has been paid in the testator's own lifetime.
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The Executors suspending against all the legatars, that the free gear confirmed would not be so meikle as will pay all their legacies; and so the legatars disputing amongst themselves, and Doctor Monro, as doer for the Kirk, alleging, That a legacy of 5000 merks, left for building of a kirk in the Elie, should be totally paid, albeit the rest of the legacies should suffer defalcation, because the same was left ad pios usus, which ought to have the preference to all other legacies; the Lords found, that there ought no preference to be given to any of these legacies before others, where the free gear was not sufficient to pay all the legacies, and that all should suffer a proportionable deduction; for all the preference which in law a legacy, ad pios usus, had before other legacies, was only where the defunct's gear was sufficient to pay all, ea casu Faleidia detrahebatur de cæteris legatis, et non de legato ad pias causas, sed quanda legata excedunt vires hæreditatis, tum Faleidia detrahitur, tam de legatis ad pias causas quam aliis. And, upon the 15th of July, they found, that a legatum ad pias causus being solutum, and delivered to the legatar in name of the kirk, and so being perfected by the testator in his own lifetime, should not suffer defalcation with the other legacies, albeit the free gear would not pay all the legacies. And that it was delivered by the defunct himself in his lifetime, was found probable by witnesses.
Act. Nicolson.Alt. Stuart & Lermonth.Clerk, Scot.
Fol. Dic. v. 1. p. 535. Durie, p. 526.*** Spottiswood reports this case.
1630. July 6.—Sir William Scott having exhausted, by legacies, the part due to himself in testament, the legatars, after his decease, did strive among themselves for preference. Amongst other legacies, he had left 5000 merks for the building of a kirk in Ely, which was sought to be paid entire, without any rateable deduction with the rest of the legacies, in respect it was legatum ad pias causas, which should have a prerogative before all others. Yet the Lords found that legacy no more privileged than the rest; but that a proportional deduction should be taken off it, as well as off the rest.
Spottiswood, (Legacies.) p. 195.*** This case is also mentioned by Kerse.
Legatum ad Pias Causas found to have no privilege of prelation to the rest of the legatars.
