
    Duke of Richmond & Al. v. Milne’s Executor & Al.
    The town of Fochabers, in Scotland, is a burgh of barony under the ducal family of the Duke of Eichmond, incorporated as such; has a right to enjoy the privileges allowed them as a corporation, and as such has capacity to receive by donations inte,r vivos or mortis causa, which right it can exercise by trustees.
    A particular legacy is to be discharged in preference to all others, out of the funds of the succession; and in default of funds it is to be paid as long as the estate is administered by executors indifferently out of the personal and real estate, and becomes a charge on the whole estate; and descends to the heir as a personal debt when he takes possession. Interest is due thereon.
    The capacity of aliens to transmit estates ab mtestato and to inherit from others in Louisiana is granted, and there is nothing in the laws of this State thatexcludesaliensfrom the inheritance of any kind of property.
    The incapacity of aliens by English and Scotch laws is onlyoxtended to their holding lands or acquiring heritage, either by purchase or succession.
    Under the laws of Scotland an alien may acquire property in goods, money and movable estate; make a will and sue for personal debts. In England he may be a mortgagee and recover his debt, wliero there is a positive prohibition to hold lands.
    A particular legacy here, by the law of Scotland would be considered as.a pure bequest of a sum of money and not of heritable property, which if made by a person in Scotland to a citizen here, the . courts 0 f law in that country will give effect to the legacy.
    So, where,as in this case,a particular legacy of $100,000 is bequeathed by acitizenof Louisiana to establish a free school in his native town of Fochabers in Scotland, it being purely movable in its nature, and independent in any manner of heritable property, mnst consequently be paid ont of the estate; without any reference to any particular real estate.
    Appeal from the court of probates, for the parish of New Orleans.
    This is an action to recover a legacy. The plaintiff, Charles Gordon, Duke of Eichmond and Lenox, superior and feudal lord of the burgh of barony and town of Fochabers, in the county of Moray, Scotland, and Alexander, Marquis, baron, bailie, and sole magistrate, appointed by the "Duke of Eichmond for the administration of justice in said town of Fochabers, allege, that Alexander Milne, also a native of said town, hut for a great many years a resident of New Orleans, died in October, 1838, leaving by his last will and testament a legacy of $100,000, which he bequeathed to his native town [313] of Fochabers to he employed in establishing a free school, with sufficient and competent teachers and supporting said school for the use of the parishes of Bellie and Ordifish.
    The petitioners further show that by reason of tbeir respective qualities $nd the powers specially conferred on them, and particularly by a meeting of the inhabitants of the said town and parishes, they are authorized to demand and receive the legacy herein before mentioned, for the purposes of applying it in conformity with the testamentary dispositions of the testator and donor; that they have duly appointed as their agents and attorneys in fact, jointly and'severally, ¥m. O. Mylne and Murray M. Thompson to represent them, and to receive on their account the amount of said legacy.
    • The petitioners pray that they may he recognized with full power to receive said legacy; that the executors of the last will and testament of Alexander Milne, deceased, and the attorney for the absent heirs, be cited; and that they have judgment in their behalf; and that said legacy be paid out of the succession of the deceased, by the executors, to your petitioners’ agents.
    
      J£. W. Eoffman, attorney for absent heirs, excepted to the petition on the ground that all the parties in interest were not cited; that the asylums for destitute orphan boys and girls are legatees and not made parties. Tor answer, he says, the deceased left brothers and sisters, or their descendants who represent them, who are next of kin and heirs at law of the said testator. He therefore avers that the petitioners are without any capacity to take under said will, and the bequest is void for want of this capacity. He prays that the petition be dismissed.
    The executors answered, and said they admitted the testamentary disposition, claimed in the' petition, but required proof of the authority of the peti[814] tioners to receive the amount of the said legacy. They submitted the question to the court whether the amount of the legacy should be paid as prayed for.
    An amended petition being filed making the asylums of the orphan boys and girls parties; they appeared by counsel and answering, said: Being universal legatees of Alexander Milne, deceased, they submitted to the court, whether under the laws of Louisiana, the petitioners being aliens, are'entitled to and can receive the legacy in question ; and if not, that their petition be dismissed.
    Upon these pleadings and issues the cause was tried.
    The principal question involved, is, are the donees or legatees capable and permitted by our laws to take the legacy ?
    
    The judge of probates says, “the only question at issue between the parties grows out of the proper construction to be given to the 1477th article of the La. Oode and the Scotch laws.” The artiole of the Oode in question says: “ Donations inter vwos and mortis cama, may be made in favor of a stranger when the laws of his country do not prohibit similar dispositions from being made in favor of a citizen of this State.”
    The Scottish law as laid down by Professor Bell, in his “ Principles of the Law of Scotland,” No 1641, says, “It is indispensable to the vesting of a succession in a particular person, 1st, that he shall be conceived at the opening of the succession and be born alive; 2d, legitimate; 3d, that he shall he a subject of the King, &aP Ho. 1478, “ Eights in land (whether propertyj security, or life-rent) made real by infeoffment are heritable.'1'1 Ho. 2135. “ Aliens are incapable of acquiring heritage either by purchase or succession and cannot, hold a lease. They may trade as freely as a subject and acquire property in goods, money, and movable estate; and may make a will and sue for personal debts.
    The opinions of the Eight Hon. Andrew Eutherford, Lord Advocate of Scotland, and of the Eight Hon. Thomas Maitland, Solicitor General, [315] were taken on the following statement and questions, produced in evidence.
    There is laid before Her Majesty’s Lord Advocate for Scotland :
    1. Printed copy of the will of the deceased, Alexander Milne.
    2. Printed report of the decision of the probate court of the parish and city of New Orleans, finding that the bequest of a legacy of one hundred thousand dollars to the town of Fochabers is not good, on the ground that “ the character of the legacy was a bequest of heritable property, within the province of the law of Scotland” — and that, “it was clear that a citizen of Louisiana could not have received a donation of the same kind left to him in Scotland.”
    1. “ If by the law of Scotland, the legacy to the town of Fochabers is a bequest of heritable property ? ”
    2. “ If a person in Scotland had left to a citizen of Louisiana a donation of the same kind, would the courts of law in Scotland have found the citizen of Louisiana entitled to the legacy ? ” See case decided by the court of session, Fiseher and Others v. Earl of Seafield, 18th November-, 1825.
    
      Lord Advocate Rutherford :
    
    1. It is very difficult to apply the law of Scotland to the construction of a foreign instrument, but as I read that instrument I should not consider the bequest in question as, in any sense of the word, a bequest, or rather donatio mortis causa, of heritable property. It appears simply a bequest of a sum of money. — The circumstance of that bequest being made in favor of a corporation in no respect alters its nature. — Farther, although by the law of Scotland, a party cannot affect his heritage by will, he may nevertheless affect it by a deed executed mortis causa; and if he conveyed heritable property to disponees or to his heirs, binding them to pay a sum of money to a third party, the sum so ordered to be paid to the third party, whether an in- [316] dividual or a corporation, would not be considered as an heritable subject, but would be taken as a legacy or bequest although paid by disponees or heirs taking an heritable subject, or paid out of the price of heritable subjects which they might be under the necessity of selling in order to implement the will of the testator.
    2. In answering this query I have in great measure anticipated the second, which, as it appears to me, properly embraces the point on which this ease turns. Although by the law of Scotland, a citizen of Louisiana could not,, because an alien, hold heritable property in this country, either by purchase or succession, I have no doubt whatever, and consider it to be clearly the-law, that if a Scotchman died, leaving to a citizen of Louisiana a sum of money payable out of personal estate, or payable out of real estate directed, by him to be sold, or payable by the disponees in the universitas of his estate,, heritable and movable, such citizen of Louisiana would recover that sum in the courts of this country, and would recover it notwithstanding a deficiency in the personal estate to pay the testator’s personal debts or preferable bequests, if there were any such. I do not feel myself entitled to speak of the instrument in question, but I am at a loss to see the principle upon which the bequests to the charitable institutions of the State, named as residuary legatees, can be held preferable to the special bequests in favor of individuals, or in favor of corporations. If therefore there was personal property to answer the special bequests, we should in this country think those special bequests preferable to any bequest of residue, and indeed there can be no residue with us till the special bequests are satisfied; and the special bequests would be preferable though conceived in favor of an alien, and though directed to be vested by that alien legatee in the heritage of his own count:y. But even if there had not been sufficient personal property to pay all the bequests, I think there can be no doubt, by the law of Scotland, that under [31Y] an instrument of this nature settling the wviversitas of the maker’s succession, it would have been no objection to a party claiming from the disponees payment of a sum of money, that he was an alien or bound on receiving it to invest it heritably in his own country.
    
    Upon the point of international law, especially as depending upon the municipal law of Louisiana, it does not perhaps become me to express an opinion. But I cannot help adding, that assuming the principle of reciprocity which the Code of that State makes the basis of international law, there are no good grounds for the judgment which has been pronounced in the case now under consideration. The courts of this country in the converse case would not have pronounced that judgment. They would have given effect to the legacy in favor of the citizen of Louisiana.
    
      Solicitor General Maitland:
    
    I entirely concur in the opinion given by the Lord Advocate in this case, and hold it to be very clear:
    1. That if the legacy to the town of Fochabers had occurred in a Scottish instrument, it would, by the law of Scotland, have been a pure bequest of a sum of money, and not of heritable property.
    And 2. That if a person in Scotland had bequeathed a legacy in similar terms to a citizen of Louisiana, the courts of law in Scotland, would, without hesitation, have given effect to the legacy.
    There was judgment against the plaintiffs, and they appealed.
    
      JSustis & Th. Slidell for the plaintiffs and appellants:
    1. That the town of Fochabers is incorporated by charter, and is represented by the plaintiffs, the Duke of Kichmond, as the feudal lord, and Alexander Marquis, as baron bailie; they are consequently invested with full power to sue and recover the legacy now in contest. This is established by the record.
    [318] 2. It is shown that the legacy in question is of a sum of money, and that there are sufficient movable effects of the succession to satisfy it. This is demonstrable by the inventory.
    3. That by the laws of Louisiana, legacies are to be paid indifferently out of the real and personal estate of the testator; they are a charge on the whole estate and the heir on receiving it is hound to pay them. La. Code, 1661 and seq., 1627.
    4. Particular legacies must he paid in preference to all others even though they exhaust the whole estate, and interest is due thereon from the day of the demand. Id. 1627,16, 19.
    5. Aliens may inherit and hold lands in Louisiana and there is no impediment or qualification to their succeeding by inheritance to intestate successions. Philips v. Pogers, 5 Martin, 701.
    6. The article 1477 of the Louisiana Code is confined exclusively to donations inter vivos and mortis causa.
    
    7. There can he nothing inferred from the laws of nations from which any general law can be implied prohibiting, restricting, or limiting testamentary dispositions in favor of foreigners. If there be any such prohibition or restriction in any particular case the party alleging it and seeking to annul a testamentary disposition by reason of it, must prove its existence clearly; the burden of proof rests on him.
    8. The heritable bonds of the Scottish law have no, similarity with our obligations secured by mortgage: they are not mortgages, they are hypothecations and in Scotland would be strictly personal. Erskine’s Institutes, 863, 602.
    . 9. By the laws of Scotland a legacy of a sum of money in favor of a citizen of Louisiana would be valid. Vide .opinions of Lord Advocate and other counsel.
    10. The reason of the Scottish lands being heritable arises from the feudal tenure of the lands and of the necessity of the creditors being invested with or having a right to the seizin of the land which none but a subject can hold. Bell’s Commentaries, Nos. 1644, 1485, 1478,1493; Erskine’s Inst. 216, [319] 222, 402.
    11. The capacity of aliens by the law of England as well as of Scotland extends only to holding lands. There is no other limitation as to their holding any other property or acquiring it by purchase, devise or otherwise. Erskine, 972; Bell, 1644, 2135; 1 Blackstone, Commentaries, 272 and seq.; 2 Kent’s Com. 61.
    12. By the law of England an alien may be a mortgagee and may receive his debt in countries where the prohibition to hold lands is positive. 1 Powell on Mortgages, 106.
    13. There is no statute in Scotland concerning legacies, they are regulated by the civil law. 2 Kent’s Com. 61 and 62.
    14. The legacy under consideration does not come within the prohibition of the art. 1507 of the Civil Code. It is neither a substitute, nor a fidei commissitm; a trust under the English law is neither one nor the other. • 4 La. Ttep. 213.
    15. The Code itself recognizes the validity of bequests of this kind, they are not embraced in the prohibition of art. 1507. How are establishments of public utility to be kept up, how is the benefit intended to be secured to them unless through the instrumentality of administrators, agents or trustees ? La. Code, 1536, 1543.
    
      16. The provisions of the Code concerning usufruct of movable property are closely assimilated to the species of property created under this bequest. Id, art. 556 and seq.
    IT. Legacies for objects of charity and public establishments being permitted by our laws and being privileged in the intention of the law, the form in which they are to be earned into effect is immaterial, the court will give the legacy such an effect as will be consistent with the intention of the testator and the public good. Domat, book 4, tit. 2, sects. 6, T.
    18. Hence it is inferred that there is nothing in the law of Scotland which would prevent a similar legacy from being valid if made in favor of a citizen [320] of Louisiana; -and that the plaintiffs are of light entitled to receive the amount bequeathed to the town of Fochabers by the last will of Alexander Milne, with interest, for which judgment is prayed.
    
      Hoffman for the absent heirs.
    
      L. G. Duncan for the orphan asylum.
    
      Canon for the executor.
   Simon, J.

delivered the opinion of the court.

This case arises out of the last will and testament of Alexander Milno, deceased, which contains the following disposition: “ Unto the town of Fochabers (place of his nativity) I give andbeqneathe the sum of one hundred thousand dollars, to be employed in establishing a free school, with sufficient competent teachers, and supporting the said school, in the said town of Fochabers, for the use of the parishes of Belize and Ordiffshf The legacy is now claimed by Charles Gordon, Duke of Richmond and Lenox, superior as feudal lord of the burgh of barony and town of Fochabers; and by Alexander Marquis, baron bailie and sole magistrate for the administration of justice in said burgh of barony. They further allege that by virtue of the powers specially conferred upon Charles Gordon by a meeting of the inhabitants of the town of Fochabers duly convened, and at a meeting of the kirk session of the parish of Bellie, also duly convened, they are authorized to demand and receivb the said legacy, for the purpose of applying the same in conformity with the said testamentary disposition; and that accordingly, they have appointed two agents and attorneys in fact, to represent them in the premises, and to receive on their account the amount of the legacy. They pray to he recognized as the persons authorized to claim said legacy, and that the amount thereof he paid over to their said agents, &e.

[321] The defendants, to wit, the three executors of the last will of the deceased, the attorney appointed by the court to represent the absent heirs, the society for the relief of destitute orphan hoys in the city of Lafayette, and the Poydras female asylum, joined issue by denying the capacity of the petitioners to take under the will; and by submitting to the court whether under the laws of Louisiana, the petitioners, being aliens, can he entitled to recover the legacy by them claimed for the purposes mentioned in the will.

The court of probates rejected the plaintiffs’ demand, gave judgment in favor of the defendants, and said plaintiffs appealed. '

Our attention has been called to two principal questions arising out of the denial of the plaintiffs’ capacity to take under the will; and it is contended by the appellees: 1. That the town of Fochabers isnot incorporated, and that therefore there is no person or corporation capable of receiving the legacy.

2. That under the laws of Louisiana, the plaintiffs, as foreigners, cannot take under the will, because the laws of Scotland prohibit similar dispositions from being made in favor of a citizen of Louisiana.

I. Fochabers is a burgh of barony under the ducal family of Gordon, and governed by a bailie of his grace’s appointment. Chambers’ Gazetteer of Scotland, p. 437. It was incorporated as a burgh of barony by a royal charter of James the 6th, King of Scots, of the 10th of February, 1598, and forms one of a very large class whieh in Scotland are well known by the designation of Burghs of Barony. By the laws of Scotland, a burgh of barony is a corporate body, erected by the sovereign, and made up of the inhabitants of a determinate tract of ground, with jurisdiction annexed to it; they were erected by the sovereign either to be holden of himself or in favor of subjects who enjoyed the property or superiority of the lands contained in the charter; from this difference, arises the division of Burghs royal, and Burghs of regality or Barony. Erskine’s Instit. of the Law of Scotland, b. 1st, [322] tit. 4, sects. 20 and 30. The general law of incorporation applies to the Burghs of Barony, and they have power to administer their common good, to elect officers, to make by-laws, &c.; Bell’s Principles of the Law of Scotland, No. 2131. Under this system of laws, the incidents toa corporation are these: 1. As a legal person the corporation has persona standi in judhio ; it may sue or be sued, grant and receive, by its corporate name, &e.: 4. It may purchase or hold lauds, and be infeoffed by its corporate name and title; and 5. It has perpetual succession, &e. Id. No. 2169. The power or authority of the Duke of Richmond in regard to the burgh of Fochabers, is acquired by inheritance, was originally derived from the crown, and is constituted by the royal charter of 1598; it has a form of government and a local magistracy, and the baron bailie is the chief and sole magistrate of the burgli, whieh office is now filled by Alexander Marquis, one of the plaintiffs. The evidence of distinguished jurists on the laws of Scotland, has been taken on this particular subject, from whieh it clearly appears that Burghs of Barony are proper corporations; andas such they are known and recognized in the Scotch law; those corporations are accounted persons, because they have their own proper stock, rights and privileges as persons have, and as such are capable of receiving and holding property either absolutely or in trust by their representatives. Under the law of Scotland, if a bequest similar to the one in question had been made there by a will good in point of form, it could be claimed on behalf of the town or burgh of barony of Fochabers for -the use of and in trust for the said town, and parish of Bellie, including the lands of Ordifish; and the same could be competently claimed by the baron and the baron bailie to be held on behalf of the inhabitants of the parish, including those of the town itself and the lands of Ordifish. In such ease, the baron and baron bailie are empowered to act as trustees for tbe corporation, as they are [323] authorized to represent them in all circumstances where it may he necessary to claim or enforce their rights or privileges as a corporate body. We must therefore conclude that the inhabitants óf the town of Fochabers have aright to enjoy the privileges allowed them as a corporation, that as such they have capacity to receive by donations mier vivos or mortis ecmsa, and that they are legally and properly represented in this suit by their trustees.

II. According to the 1477th article of the La. Code, “ Donations inter vivos and mortis causa may be made in favor of a stranger, when the laws of his country do not prohibit similar dispositions from being made in favor of a citizen of this State.” This establishes a reciprocal- right in favor of the citizens of the two countries, and it behooves us therefore to inquire first, into the nature of the legacy under our laws — and 2d, to examine whether, under the laws of Scotland, a similar bequest may he made in favor of a citizen of Louisiana.

1. The legacy made by Alexander Milne, to the town of Fochabers, is one of a sum of money; and being a particular legacy, it ought to be discharged in preference to all others. La. Oode, art. 1627. Being also a movable legacy, it is to be paid out of the funds of the succession; but in default of such funds sufficient to discharge it, it is to be paid, as long as the estate is administered by the testamentary executors, indifferently out of the personal and real estate of the testator. It becomes a charge on the whole estate, and when the heir claims to be put in possession of the succession, and to take the seizin from the testamentary executor, he is bound to provide for the payment of the movable or pecuniary legacies, by offering to put in the hands of the executor a sum sufficient to satisfy them. La. Code, arts. 1661, 1662,1663 and 1664; thus, such a legacy becomes a personal debt of the heir, which he must discharge as any other debt due by the succession, vith[324] out any distinction being made whether it is to he satisfied out of his personal or real property; and interest is due thereon from the day of the demand. La. Code, art. 1619. The legacy under consideration is therefore a simple pecuniary bequest, which must he acquitted by the executors or by the heirs in the same manner as if it were a debt of the estate.

Before proceeding to examine the second question, it may he proper to remark, that the provision contained in the art. 1477, of our Code, is limited exclusively to the incapacity of receiving donations inter vivos and mortis causa, and that nothing in our laws shows that foreigners are excluded from the acquisition of real or personal property, -by will or succession, and that they are not capable of inheriting either. La. Code, arts. 881, 882. The capacity of aliens to transmit their estates ab intestato, and to inherit from others in Louisiana, is on the contrary clearly shown by the art. 945, which declares that slaves alone are incapable of either; and as under the art. 946, the incapacity of heirs is not presumed, he who alleges it must prove it. There is therefore nothing in the laws of this State that excludes aliens from the inheritance of any kind of property.

2. The incapacity of aliens by the English and Scotch laws is only ex • tended to their holding lands or acquiring heritage either by purchase or succession. Erskine’s Inst., h. 3, tit. 10, sect. 10; Beil, Nos. 1644, 2185; 1 Blackstone’s Com. 272, et seq.; 2 Kent’s Com. 61. Tinder the laws of Scotland, an alien may acquire property in goods, money, and movable estate, and make a will and sue for personal debts; Bell, No. 2135 ; and under those of England, he may even he a mortgagee and recover his debt in countries where there is a positive prohibition to hold lands. Powell on Mortgages, 106. The opinion of the Lord Advocate of Scotland and of the other jurists who have been examined on this subject, demonstrates clearly that if the legacy had occurred in a Scotch instrument, it would, by the laws of [325] Scotland, have been considered as a pure bequest of a sum of money and not of heritable property; and that if a person in Scotland had bequeathed a legacy in similar terms to one of our citizens, the courts of law in that country would without hesitation give effect to the legacy, The reason is drawn from the very expressions of the Scotch laws, and is very obvious: A legacy, in general, according to those laws, is defined to be a donation or bequest mortis causa of a sum, or subject, or universitas, to be paid or delivered by the executor out of the free movable estate of the deceased, to a person named or plainly denominated; and a general legacy, or the legatum quantitatis, is a legacy not of a special article or debt, but indefinite, of so much money, or fungibles, or movables of a particular description or class. Bell, Nos. 1871, 1873. In this case, the bequest of a fixed sum of money, is purely movable in its nature, and is not one depending on, secured by or in any manner attached to heritable property; it must consequently be paid out of the estate, without any reference to any particular real estate, and under the Scotch laws would come within the definition of the legatum quantitatis. On this subject, the Lord Advocate informs us further, that although by the law of Scotland, an alien could not hold heritable property there, either by purchase or succession, there is no doubt that if a Scotchman died, leaving to a citizen of Louisiana, a sum of money payable out of personal estate, or out of real estate directed by him to be sold, or payable by the disponees in the universitas of his estate, heritable and movable, such citizen would recover that sum in the courts of Scotland, notwithstanding a deficiency in the personal estate to pay the testator’s personal debts or preferable bequests. These principles of the Scotch law, which are derived from the Roman or civil law, are very similar to ours. La. Code, art. 1661. They contemplate the payment of a pecuniary legacy in the same light as the payment of a debt due by the estate; it must be discharged; and the nature and the object of the legacy being alone to be considered, the legatee cannot claim but [326] the money, without his being entitled to exercise any right or control over the heritable property, out of which the funds are to be raised to satisfy the bequest •, if it he necessary to sell lands for the purpose of discharging such movable legacies, the price of such lands so sold by the owner or by the executor becomes movable, and as such, must be applied to the payment of those legacies; although it cannot be said that such legacies are debts secured upon land, and of a heritable character. Bell, Nos. 1478, 1479. We have an instance of a bequest made by an English subject to the United States, the amount of which, of about one hundred thousand pounds, was regularly paid over to our government: It is the bequest made by James Smithson, of London, to the United States, for founding at Washington an establishment to be styled “ the Smithson Institution, for the increase and diffusion of knowledge among men.” In December, 1835, tbo President of the United States transmitted to Congress a report from the Secretary of State, together with the papers and documents relative to said bequest; Congress acted upon the recommendation of the President, and a law was passed accordingly for the purpose of accepting the bequest and the trust. See vol. 2, document 25,1st session 24th Congress, vol. 9, Laws of the United States, p. 439. We see no reason, therefore, why the same reciprocity should not be extended under the laws of Louisiana, to English and Scotch subjects, when it is clear that according to tho laws of their country, our citizens would be entitled to recover similar legacies.

Much has been said, however, to convince us that the legacy is heritable in its nature and effect; and it has been urged that all that proceeds from immovable property is immovable, and that any sum of money secured upon real property is a heritable bond. According to the Scoth laws, all subjects (things) which were immovable by the Boman law, as a field or whatever is [32V] either part of the ground, or united to it, fundo annexum, as minerals, houses, wells, &o., are heritable; and heritable objects are those which on the death of the proprietor, thus descend to the heir. Erskine, b. 2, tit. 2, sects. 3 and 4; Bell, Nos. 1470,1471, 1472. Bights connected with or affecting lands, though not feudalized, are heritable; as servitudes, reversions, faculties and rights to challenge deeds relating to heritage. Bell, No. 1485; Erskine, b- 2, tit. 2, sect. 5. Thus, naked charters, or the disposition of the property or superiority of lands, or heritable bonds, though seizin has not proceeded on them, are heritable, because they are all rights of or securities upon land, and the proprietor or creditor may complete them by seizin, when he shall think proper. On the other hand, whatever has no resemblance to a feudal right, and produces no annual fruits, is movable; by this rule, cash, jewels, &c., are all movable subjects; all subjects bearing interest ex lege, are movable in all respects; simple personal debts and engagements, whether presently due or payable at a future term with interest, are movable; as also the price of lands sold by the owner. Erskine, b. 2, tit. 2, sects. 7 and 13; Bell, No. 1479. The distinction is very clear and obvious, and it suffices to state that the reason of the Scottish bonds being heritable, originates evidently from the feudal tenure of the lands, and from the creditors being invested with or having a right to the seizin of the land, which none but a subject can hold. ' Bell, Nos. 1485,1478,1493 and 1644. Erskine, pp. 216, 222, 402. In the present case, how could the legacy, if made in Scotland, be considered as a heritable bond ? We have already demonstrated that the legatee has no right connected with or affecting lands, and less so is he entitled to be invested with the seizin of any land; the bequest does not carry with it any right of infeftment (enfeoffment), its amount is to be paid in money out of the movable estate of the deceased; it becomes the debt or personal obligation of the heir; he must satisfy it as any other debt, not only out of the funds of the succession, but, if necessary, out of any funds proceeding [328] from the sale of property, either personal or real, to be sold or disposed of by the executors or by himself for-that purpose.

We think, therefore, that the doctrine of heritable bonds would not apply to the bequest in question, if made in Scotland; and that the judge a quo erred in not giving full effect to the legacy under consideration.

With regard to the interest allowed by law, from the day of the demand of the legacy, it cannot he included in our judgment, because it has not been claimed.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed; and proceeding to give such judgment as, in our opinion, ought to have been rendered in the court below, it is ordered, adjudged and decreed, that the plaintiffs be recognized as the persons duly authorized and entitled to claim and receive the legacy of one hundred thousand dollar's mentioned in the last will and testament of Alexander Milne, deceased, as being made to the town of Fochabers; and that the amount thereof be paid over to plaintiffs’ agents named in the petition, by the testamentary executors of the said last will and testament, with costs in both courts.  