Scottish Court of Session Decisions

Subject_1 PAYMENT.

Legatees of John Caldwall
v.
Thomas Caldwall

Date: 31 January 1736
Case No. No 23.

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Though an executor may exhaust the testament by debts due to himself, without necessity of doing diligence, a legacy left to him is upon a different footing, which he is not allowed to take credit for, in exclusion of the other legatees; for seeing the legacies are all expressed in the testament, they must come in pari passu, and he is not allowed to pay primo venienti, as in the case of debts. Yet where a legacy of L. 20 was left to an executor to buy a suit of mournings, he was allowed to take credit for what part of the sum he had de facto employed that way, as being a sum to be laid out ante omnia by the express orders of the defunct.

Fol. Dic. v. 2. p. 50. C. Home.

*** This case is No 23. p. 8066. voce Legacy.