Subject_1 GENERAL ASSIGNATION. Subject_2 SECT. II.
Relative to Thirlage. - Legacies. - General Clauses in Assignations. - What a General Assignation will carry.
Alexander, William, and Thomas Forbeses v. Forbes of Pasling
Date: 23 January 1673 Case No. No 4.
A legacy of 1000 merks out of the rests, in the tenants hands, is not a special legacy for which the legatee himself can pursue, and therefore has only action against the executor.
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The saids Alexander, William, and Thomas Forbeses, having a legacy of 1000 merks left them by their goodsire, did intent action against Forbes of Pasling, as executor nominated and confirmed, for payment thereof. It was alleged, That the pursuers legacy was speciale legatum, viz. 1000 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 rests, having paid the rests to the defunct; and, the most that the executor was obliged to do, was to assign the pursuers, 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 substance, of the thing itself, yet the executor is obliged prestare valorem, as was found, 24th June 1664, Falconer against M'Dougall, voce Quod potuit non fecit, where a sum of 1000 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 legatar. 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 exegutor should be liable; as to which, it is thought he should he 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 in favorem of the legatar, and so cannot put him in a worse condition than a common legatar.
Fol. Dic. v. 1. p. 338. Gosford, MS. No 559. p. 301.
*** This case is reported by Stair, No 14. p. 2263.
