THOMAS M'QUISTIN ANGUS, and his Curators, v ELIZABETH ANGUS (Court of Session)

William Angus, the younger, died before his father, unmarried and intestate. Charles Angus, the eldest son, likewise predeceased his father; but left issue, the pursuer and two daughters.

On the death of the truster, a great part of his property was found to consist of heritable bonds; and a competition for the share which devolved on the heirs or executors of William Angus, the younger, arose between the pursuer, who was his nephew and heir-at-law, and Elizabeth Angus, the only surviving child of the truster, and the executrix ab intestato of her deceased brother.

The trustees are not directed to convert the estate into money, for the purpose of being divided; they only have power given them to sell, which is evidently for the purpose of enabling them to pay the debts and legacies, which they are directed to do before they can divide the residue amongst the truster's heirs. The leading case on this subject is that of Durie v. Coutts, 30th Nov. 1791, which is directly in point; and was decided in favour of the heir.

The case of Wilson v. Smart, 31st May 1809, which is relied on by the opposite party, was taken out of Court by compromise, before a final judgment; and it appears from the report that the Court did not mean by that judgment to derogate from the authority of Durie's case.

The case of Durie v. Coutts was of a very special nature; in particular, there was in it a direct conveyance of an heritable bond for £2000, which, at the period of the death of Jane Durie, was held by the trustees specially and nominatim for her behoof alone. This, as a jus crediti affecting a certain specific heritable subject, descended to her heir. In this view, the case of Coutts v. Durie is not adverse to the executor's argument; and the doctrine maintained by her received full effect in the case of Wilson v. Smart, 31st May 1809.