Ann Fotheringham, and Davidson her Husband, v. Nairns
Date: 25 February 1749 Case No. No 29.
Legatees were found entitled to possession, in opposition to the executor; the legatees finding caution to be accountable to creditors, if the fund should prove deficient.
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John Murray, son to Lord Edward Murray, by his testament in April last, nominated Louisa and Henrietta Nairns his executors, and universal legataries; and by another deed in September last, he bequeathed to Mrs Ann Fotheringham, spouse to John Davidson of Whitehouse, certain particular pieces of furniture, free of all burdens, and gave power to her, after his decease, to intromit with the said particulars. As Mr Murray died in Mrs Davidson's house, in which the particulars legated were, a question arose between the legatary and the executors as to the possession of the subjects legated; the legatary and her husband insisting that the possession as well as the property was transmitted by the legacy; on the other hand the executors contending, that as the defunct's debts were preferable to the legacies, the possession of the goods ought to be with them, until it should appear, whether or not there was sufficiency to pay the debts beside the legacies.
Upon this debate, the Commissaries, after having found that the possession was not transmitted, and that action at the legataries’ instance was necessary to be brought against the executors for obtaining the same, did, by another interlocutor in the action brought against the executors, find, ‘That special titles ought to be made up to the same before delivery.’
Which being complained of by bill of advocation, the Lords found, ‘That there was no occasion for confirming the special legacy, and that the legataries were entitled to retain their possession upon caution to answer for the values to all persons having interest, the same being ascertained by appretiation made by persons of skill.’
The Lords considered, that were the subjects confirmed, the legataries might pursue the executors to give them up upon caution; and if so, why not detain them upon caution, as no lapse of time can hurt the creditors in their preference to the legacy.
Fol. Dic. v. 3. p. 379. Kilkerran, (Legacy.) No 5. p. 330.
