Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1682.
Janet Alison v. Captain Alison and Mr George Steill, Minister at Prestonhaugh
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March 10.—The Lords, on Redford's report, ordain Captain Alison, be twixt and the 20th of March, after consideration of the defunct's condition, to determine the legacy to be paid by the executor to the said Janet, pursuer, the defunct's sister; and that at the sight of the Lord Reporter; in regard the defunct, by his testament, hath left the nomination of the quantity of it to the said Captain; wherein if he fail, (he being required, by a notary and instrument, to do it,) that the will of the dead may. not be rendered ineffectual, they recommend to the Lord Reporter, ex religione boni viri, after hearing of the parties, and considering the condition of the defunct's fortune and estate, (whereof we gave in a condescendance,) to modify and determine these legacies.
Some alleged the legacy was extinct and void, the Captain refusing to give his determination: but that is contrary to lex 1. D. legat. 2, where a legacy in arbitrium tertii collation is valid, though he do not arbitrate. It is true, emptio ita in alterius arbitrium collata non valet.
Vol. J. Page 178.
1682. November 10.—In the action pursued by Janet Alison, mentioned 10th March 1682; the Lord Itedford, being allowed to modify her legacy, after consideration of the defunct's estate, and the inventary of the testament and his count-book, amounting in all to £ 16,000 Scots, and the condition of the family, being only himself and a wife; he divided in two halfs, and modified to her the half of the dead's half, viz. £4000 Scots, she being his sister, and without deduction of a proportional part of the debt if condescended on; and ordained her to take a share of good and bad in the inventary, with as much equality as might be.
