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One being pursued for a legacy, alleged, That the sum legated was due by a bond secluding executors, which could not fall under testament.
Answered for the pursuer: That the defender being tutor, and nearest of kin to the testator, had to preclude his testamenti factionem, unwarrantably renewed the bond, which was conceived in his father's time to heirs and executors, with a clause secluding executors.
Replied: It is usual for provident men to adject a clause in their bonds secluding executors, for saving of quot and confirmation.
The Lords decerned against the defender; and found the renewing of the bond in other terms than it was before, unwarrantable; although, if the tutor had made it heritable, by an obligement to infeft, the thing had been less questionable.
