A final Settlement frustrated in some particulars, how far effectual as to the remainder.
Stewart Kettleston's Three Daughters v. James Hay
1688.
February. Case No. No 39.
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A person to whom John Suttie had disponed a considerable real and personal estate to the value of L. 5000 Sterling, with the burden of L. 1000 Sterling to another, being pursued for the legacy, alleged, That the said legacy was left with a view that the defender was to get the whole fortune, whereas the real estate, which is the greatest part, was evicted by the heir in a reduction ex capite lecti; and, therefore, the legacy ought to suffer a proportionable abatement, as being in so far legatum rei alienæ; and as the defender was preferred to the legatar in getting the disposition, it is to be presumed the defunct intended the greatest share of the estate for him, who was obliged to take the disponer's name and arms; whereas, if the pursuer get the whole legacy, after the payment of debts, the defender will have no benefit by the disposition.
Answered, The pursuers, who are the defunct's aunts, are more favourable than the defender, who is a remote relation, 2do, The disposition being burdened with the legacy, and an irritancy adjected in case it were not paid, that imports, that in omnem eventum the whole legacy was to be paid.
The Lords decerned for the whole legacy, and ordained the defender to pay or assign to the defunct's estate. But found not annualrent due for bygones.
Fol. Dic. v. 1. p. 427. Harcarse, (Executry.) No 480. p. 131.
