A legacy of 1000 merks, out of the rests, due by the tenants, was found payable out of the rests only, and not otherwise performable, if there was not so much of rests.
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The Laird of Leslie having legate to his grand-children 1000 merks out of the rests due by his tenants; they pursue his executor for payment, who alleged, That this being a special legacy out of rests, if there was not so much rests, they cannot crave that legacy out of any other of the defunct's estate. 2do, It being a special legacy, the legatars might have pursued the tenants themselves, and the executor is only obliged to assign.
The Lords found, That this legacy was only to be payable out of the rests, and no otherways performable; but found, that the executor was liable to have done diligence against the tenants within the year, when the hypotheck remained upon their goods; and that this was not in the condition of special legacies, or sums due by bond, in which it is sufficient to assign whenever the legatars insist.
