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Helen Wilson raises a reduction of a testament made by Alexander Wilson, her brother, whereby he nominated James Kelburne, his executor: And the testamentary witnssses being appointed to be examined, David Stuart, town-clerk of Rothesay in Bute, as writer thereof, and also one of the witnesses to it, being cited by the said James, it is objected against him by Helen the pursuer, that he cannot be admitted, because he is a legatar in the testament. Answered, He is most necessary and habile, being adhibited both as writer and witness, and his legacy is mean, being only fifty merks, after all the other legacies are paid, and the defunct's stile-book. Replied, law considers only whether a witness may tine or win in the cause, and has not deferred the quantity; and it is probable he will be concerned to support the testament, whereas, if it fall, he gets nothing. The Lords found the party could not adduce him; but if they saw necessity ad informandam judicis animam, they reserved power to themselves ex officio to examine him. By the Roman law a legatary might be a witness in the testament where his legacy was left, and consequently might be examined thereupon, § 11. Institut. De testam. ordinand. For they considered the affair was cum hæede et non cum legatariis; but Vinnius thinks it a better reason, that there being seven witnesses requisite to a testament jure civili, there could be small ground of suspicion though one of them was a legatar, for there were six beside; which reason will not hold now, where, by custom imitating the canon law, a testament before two witnesses is sufficient, and a valid probative writ by law, which makes it now reasonable that a legatar should not be a habile witness, testis in causa propria nemo idoneus.
