If one take an estate to himself in liferent, and to his son, a papist, in fee, and infeftment follow thereon, the protestant heir may insist to be served immediately when the liferent right ceases.
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Jean Campbell made an entail of her estate of Lauriston to John Law her eldest son, and his male-issue; whom failing, to William Law her third son, and his male-issue, passing over Andrew her second son, and his issue; whom failing, to her nearest heirs whatsoever, under certain provisions and limitations.
By her death, the right of succession devolved upon John Law her son. He possessed the estate until his death, but made not up titles to it.
By his death, the right of succession devolved upon William Law. He was served heir general of tailzie and provision to his brother John; by which service the personal right to the entail, and to the procuratory therein contained, became vested in him.
William disponed the estate of Lauriston in liferent to himself, and in fee to his son John and his male-issue; whom failing, to the heirs whatsoever of Jean Campbell, under the provisions and limitations contained in the entail above mentioned.
In terms of this disposition, William and John his son obtained a charter, and were infeft.
William Law died in France, where he had been long settled, leaving two sons, John and James, both residing in foreign parts.
They had attained the age of fifteen years complete before the death of their father, and had been educated in the popish religion, and continued to profess it.
The pursuers, therefore, as heirs at law of Jean Campbell, being descended from her second son, took out a brieve from the Chancery, in order to have themselves served, in terms of the statute 1700, “nearest and lawful heirs-portioners of tailzie,” of the reformed religion, “in general to William Law.”
The service was opposed by John Law; and it was objected for him; 1mo, That the pursuers cannot be served heirs of provision to William Law; for that his right was only a right of liferent, and ceased at his death; the right of property is vested in the defender by charter and infeftment; and this right must be set aside before the pursuers can make up titles to the lands of Lauriston; 2do, The statute 1700 does not call the next protestant to the succession, unless the popish heir neglect or refuse to renounce popery in the manner prescribed; that is, that the renunciation be made, either before the presbytery within whose limits the heir resides, or before the Privy Council, who might undoubtedly grant commission for administering the formula to one residing in foreign parts. Now, neither of the alternatives can here take place; not the former, for that the defender resides not within the limits of any presbytery; not the latter, for that the Privy Council of Scotland is abolished by the act 6to Annæ; and this part of its jurisdiction has not been vested in any other court.
Answered for the pursuers; 1mo, William Law, by his general service as heir of provision to his brother John, carried the procuratory of resignation, and the personal right to the estate, which had been settled upon John by the entail of Jean Campbell. William did indeed execute this procuratory, and took the real right to the estate, in favour of himself in liferent, and of his son, the defender, in fee; but the liferent-right ceased by the death of William, and the right of fee is void by the statute 1700; the personal right therefore to the estate must be considered as remaining in hæreditate jacente of William, in the same manner as if no infeftment of fee had ever been taken in favour of the defender; and this personal right will be vested in the pursuers by that service in which they insist. To sustain the plea of the defender, would be to invalidate the statute 1700; for that he whose heir was a papist might take the right of lands to himself in liferent, and to the papist in fee; and, upon his death, the papist would be secured, by pleading that he was in the fee, and could not be divested by the statute 1700. 2do, The incapacity under which the popish heir falls by the statute 1700, is not from his refusing to take the formula, but from his professing popery after having attained the age of fifteen. He may remove this incapacity by taking the formula in the manner prescribed by the statute. He may either repair to Scotland, and take the formula before any presbytery in Scotland, or he may take it before the British Privy Council. The Privy Council of Scotland, and the powers and authorities belonging to it, are abolished by the act 6to Annæ; but the voluntary act of the popish heir in appearing before the Privy Council, can, in no propriety of speech, be termed a power or authority of that judicatory; so that the formula may still be taken before his Majesty's Privy Council for Great Britain, the only Privy Council which now subsists. It is evident, that, according to the defender's plea, a popish heir might, by withdrawing himself into foreign parts, be altogether exempted from taking the formula; were this plea sustained, the provision made by the statute 1700, for the security of the protestant religion, would be rendered ineffectual.
“The Lords repelled the objections proponed against the service, and allowed the service to proceed.”
Act. Miller.Alt. Sir J. Stewart, Ferguson.Clerk, Justice.
Fol. Dic. v. 4. p. 38. Fac. Col. No 187. p. 278.*** This cause was appealed:
The House of Lords “Ordered, That the interlocutor complained of be affirmed, with this variation, after the words, “repel the objections proponed against,” that the words, “proceeding in,” be inserted.”
