In questions between parents and children, who understood to be fiar.
Subject_3 SECT. III.
Children infeft as Substitutes.
Thomas Beg v. Sir Thomas Nicolson
Date: 14 January 1663 Case No. No 44.
A bond was taken payable to a husband and wife in conjunct-fee, and to the children procreated betwixt them, whom failing, to Thomas and Margaret, children of a former marriage. It was argued, that sasine having been taken, not only to the husband and wife, but to Thomas and Margaret nominatim, they are therefore fiars, and the husband only liferenter. The husband was found fiar, and Thomas and Margaret only substitutes.
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Thomas Beg charges Sir Thomas Nicolson of Carnock upon his bond of 4000 merks. He suspends, on this reason, the charger is only liferenter, and hath no right to lift the sum, because the bond is conceived thus, “to Thomas Beg and his spouse, the longest liver of them two, in conjunct-fee, and to the bairns procreate betwixt them, which failing, to two bairns of a former marriage, Thomas and Margaret Begs;” and which bond contains a precept of sasine for infefting the said Thomas and his spouse, and the bairns of the marriage, which failing, the said Thomas and Margaret, bairns of the former marriage; according to which there was a sasine taken, not only to the two spouses, but to the two bairns, nominatim, who therefore are fiars.
The Lords repelled the reason; because, having considered the bond and infeftment, conceived as aforesaid, they found the husband, by the conjunct-fee, to be fiar, and the bairns of the marriage to be destinate heirs of provision, and the said Margaret and Thomas to be only substitute as heirs of tailzie, failing the bairns of the marriage; and that, therefore, if the father had died infeft in the annualrent, if there had been bairns of the marriage, they, male and female, jointly and equally behoved to be served specially as heirs of provision to their father, and so infeft; and, failing bairns, Thomas and Margaret behoved also to be so served and infeft; for albeit there needs no general service where persons are nominatim substitute in a personal right requiring no infeftment, yet, where there is infeftment, there must be a special service. And therefore found the father fiar might uplift the money, or might change the destination thereof as he pleased; and albeit Thomas and Margaret were infeft nominatim, yet they found the sasine was without warrant, bearing only to infeft them in case of failzie of heirs of the marriage, and the infeftment could only be granted to the conjunct fiars.
Fol. Dic. v. 1. p. 301. Stair, v. 1. p. 155.*** Gilmour reports the same case:
Sir Thomas Nicolson of Carnock having granted bond and infeftment of annualrent for 4000 merks to Thomas Beg and his spouse, the longest liver of them two in conjunct-fee, and to the heirs or bairns to be gotten betwixt them; which failing, to two bairns of a former marriage, Thomas and Margaret Begs, whereupon not only Thomas and his wife, but the saids Thomas and Margaret are expressly infeft. Thomas and his wife having required and charged for the money, Sir Thomas suspended, upon this reason, that he could not be in security to pay to the chargers, because they could not give him a valid discharge and renunciation of the infeftment, without the two bairns who stand infeft. It was answered, That Thomas is only fiar, and his wife in conjunct-fee with him, which conjunct-fee, as to his wife, resolves only in a liferent; likeas, by the clause of requisition, the money is payable to him and her, and they have power to redeem; and if there were bairns of that marriage, (the infeftment not being redeemed), after their decease, they behoved to be heirs of provision to their father, in regard he died last vest and seased as of fee; and, in this case, nomen hæredum et liberorum of the marriage signifies one thing, and the two bairns of the former marriage (failing children of this marriage) behoved also to be heirs of provision to their father; and the sasine given to the two bairns nihil operatur and is null, because no body can be seased but the fiar or liferenter; and it signifies no more than if a sasine were given to an heir of tailzie substitute in an infeftment, which would be null, seeing no such person can be seased but upon a retour, as heir of tailzie.
The Lords found, that the conjunct fee stands in the man and wife, and that the two daughters were only heirs of provision substitute, failing of the heirs of the marriage; and because the two bairns were not called in this suspension, therefore Carnock raised a double-poinding against them also, wherein the father was preferred, there being no compearance for them; yet the Lords considered the case, and decided in jure.
