James Hamilton, and the Creditors of Orbiston, v. Hamilton of Dalziel
Date: 15 June 1716 Case No. No. 35.
If the instituterepudiate the entail, the substitutes, who can have no title but by a service to him, must be cut out, and the succession opens to the heir of line, as if the entail had not been made.
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William and James Hamiltons, elder and younger of Orbiston, having made a tailzie of the estate, dated at Cramond, and the father another thereafter, dated at the Buoy of the Nore; in the first, they reserve a faculty to alter; and that tailzie is to Orbiston younger and his heirs whatsomever; in the second, (the first branch whereof is Sir David Hamilton, who repudiated the heritage), there is a clause expressly resolutive of the right of any of the branches who should dispone any part of the estate to James Hamilton, old Orbiston's brother, or his issue, who nevertheless is heir of line to Orbiston younger, by the decease, without issue, of both father and son. But, thereafter, Orbiston elder grants a disposition of his estate in favours of Hamilton of Dalziel; and in a process of reduction thereof, ex capite lecti, at the instance of the said James Hamilton, in conjunction with Orbiston's creditors, it was, among other things,
Alleged for the defender, That James the heir was excluded by the several deeds at Cramond and Buoy of Nore; 1mo, By that at Cramond, wherein he is passed over, and his heirs-male called next after the heirs of elder and younger Orbiston's bodies; 2do, By the settlement at the Buoy of the Nore, not only by instituting another, but by a positive exheredation of him and his posterity, as said is; in which case, it is the same thing whether the heir instituted repudiate or not, since, still, the heir is excluded by the clause above mentioned.
Answered for the pursuers: 1mo, That the first was not a subsisting deed, but totally innovated and altered by the posterior deed at the Buoy of the Nore; 2do, That since Sir David Hamilton, the heir instituted in the second deed, did not accept, the heir was not excluded, because the deed remained a deserted deed, and the heir of blood might, notwithstanding thereof, enter to the estate, and possess it; for, otherwise, in such a case, an estate behoved to remain in perpetual non-entry. In short the effect of repudiation by our law is, that it makes way for the heir of blood, not for the substitutes in the settlement; neither will our form of transmission by service and retour suffer it to be otherwise, since no man can be served upon a repudiation, but only upon a failure.
“The Lords found, That the heir of line, and his issue, were not excluded from the succession by the clause in the said second tailzie.”
Act. Sir Walter Pringle.Alt. Boswel.Clerk, Gibson.
Fol. Dic. v. 2. p. 399. Bruce, v. 2. No. 2. p. 2.
