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Scottish Court of Session Decisions >>
Finlaw v Little. [1676] Mor 2264 (11 July 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor0602264-015.html Cite as:
[1676] Mor 2264
A legacy left, to be paid out of a particular fund, was held not to be limited; but payable out of the total executry, if the particular fund should be deficient.
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A legacy being left in these terms, viz. That it should be paid out of the testatrix her household plenishing, and debts due upon accounts; The Lords found, That albeit the said plenishing and debts should not extend to satisfy the said legacy, that it was not a limited legacy, but ought to be satisfied out of the other executry; and that the said words were only executiva as to the order and way of payment in the first place; and interpretatio should be ut actus valeat; especially seeing the legatar was the defunct's relation. And it is to be presumed, that the foresaid qualification was only as to the way of payment; in respect the defunct did look upon her plenishing and debts foresaid, as sufficient to pay the same; and did not declare that the said legacy should be only paid out of the same, and in case it should be short, that she should have no more. And it appeared to the Lords, That the executors had given up a very inconsiderable inventar of the plenishing, and far short of what a person of the defunct's condition and profession, being a great innkeeper, behoved to have in order to her calling.
Act. Dalrymple, &c.Alt. Hog. In præsentia
Fol. Dic. v. 1. p. 145. Dirleton, No 378. p. 184.
