D. 197. Cranston contra Brown. 21. Novemb. 1674.
A Testator having left by Testament a Sum of Money, due upon an Heretable Surety; and having named his Sister as Executor and universal Legator, she was pursued for payment of the said Legacy; at the least, that being likeways Heir, she should denude her self of the Right of the said Sum.
It was Alledged for her, That the Subject being Heretable, the Defunct could not bequeath the same in Testament.
It was Replyed, That when res aliena is left in Legacy, the Executor in Law tenetur luere, and ought to redeem the same, or pay the value; and multo magis in this case, the Testator having in effect left res sua, though upon the matter res aliena as to the power of disposing of the same on Death-bed, or by Testament: And therefore the Executrix, if she be Heir, (as she is in this Case) ought to give the same: and if she were not Heir, ought to redeem the same, as said is.
The Lords, upon the debate amongst themselves, considered, that in Law, legatum rei alienae is effectual if the Testator sciebat rem alienam; whereas si nesciebat, it is to be persumed he would not have left that which was not his own; and tho the Testator upon mistake was ignorant that it was res aliena, yet if the Legator was of so near Relation that it was pro∣bable he should have left the legacie, at least the value, if he had knowen it was res aliena, the Legacy was effectual: And that in the case in que∣stion, the Legator was the Defuncts Nevoy by his Brother, and the Sum that was left was his own, tho Heretable as said is; and the Testator ei∣ther knew that he could not dispose of the same being Heretable, and was presumed and obliged to know the Law; and if he was ignorant in point of Law, ignorantia Juris nocet: and therefore the Lords inclined to sustain the Legacy. But one of their Number having desired, that the Decision