D. 181. Bogie contra The Executors of the Lady Oxenford. 4. June 1674.
THE Executors of the Lady Oxenford, being pursued at the instance of a Legatar, did in the Compt before the Auditor, give in an Ar∣ticle of Discharge, viz. That the Expences of a Process at the Executors instance should be allowed: It was Answered, That if the Executor had not pursued that Process, there was as much free Gear as would have sa∣tisfied the Legacie, and the Executor had not prevailed: and if they had prevailed, the benefit would only have accresced to the Executor, and not to the Legatars: and therefore penes quem emolumentum, &c. and seing they would have had no benefite, they should have no loss by the event of that Process.
The Lords Found, That the Executors, having prosecuted a Process in∣tented by the Defunct, did their duty; and officium should not be da∣mnosum: and therefore the Charges of that Process should not be upon their own accompt, but should be defrayed out of the Executry: but so, that where Executors have no benefit by the Confirmation, but are either sim∣ple Executors, or universal Legators, as to the superplus, particular Lega∣cies being payed, if there be as much Executrie as will satisfie such Ex∣pences, and the Legacies; the Legacies ought to be payed intirely, be∣fore the Executors have any benefit; but if the Executrie will not amount to satisfy the Charges, and particular Legacies, the Charges are to be satisfy∣ed, and the Legacies to be abated proportionally, and the Executor is to have no benefit: but if he be a particular Legatar, he is to be considered with the rest of the Legatars, and to share with them proportionally. Mr. Thomas Hay Clerk. Concluded cause.