Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Alexander, William, and Thomas Forbesses,
v.
Forbes of Pasling

Date: 20 January 1673

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The said Alexander, William, and Thomas Forbesses, having a legacy of 1000 merks left them by their goodsire, did intent action against Forbes of Pasling, as executor nominate and confirmed, for payment thereof.

It was alleged, That the pursuers' legacy was speciale legatum,—viz. One thousand merks, to be paid out of the rents of the lands due by the tenants; but so it is, that the tenants were owing no rents, having paid the rents to the defunct; and the most that the executor was obliged to do, was to assign the pursuer; which he was content instantly to perform.

It was replied, That albeit the tenants were not due in any sum, yet the legacy ought to be fulfilled, there being sufficient moveables to pay the whole debts and legacies; and where there is speciale legatum, albeit the same should perish as to the being or subsistence of the thing itself, yet the executor is obliged prestare valorem;—as was found in a case betwixt Falconer and M'Dougall, where a sum of ten thousand merks, due by the Earl of Murray, being left in legacy, and assigned by the defunct, in his own time, his executor was found liable to pay the like sum to the legator.

The Lords did sustain the action against the executor; and found, that an offer to assign was not sufficient, post tantum tempus, he never having done diligence against the tenants: but did not give their interlocutor in jure upon the first point, supposing that the defunct had truly uplifted in his own time, if in that case the executor should be liable; as to which it is thought he should be liable, albeit it be speciale legatum; seeing, by the law, if a defunct should leave that which belongs to another, and not to himself, his executor is liable prestare valorem, and a special legacy is infavorem of the legator, and so cannot put him in a worse condition than a common legator.

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