In questions between parents and children, who understood to be fiar.
Subject_3 SECT. IV.
Whether it is expressed, that the Father is Liferenter only.
Laird of Dairsey v. Hay
1663.
January. Case No. No 49.
An heritable bond to a man and his wife in liferent, and to the children of the marriage in fee, the parents being infeft, cannot be renounced by the children till they are infeft as heirs of provision to their father.
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Sir George Morison of Dairsey gives a bond to umquhile John Bell and Margaret Hay his spouse in liferent, and to the children of the marriage in fee, for L. 1000, whereupon infeftment follows. Margaret, with consent of her children, and their curators, pursues for payment. It was alleged, That the relict is only liferenter, and the bairns not infeft, so that a renunciation cannot be granted till some be infeft as fiars. It was answered, That the conception of the bond being in favours of the bairns as fiars, they with the mother may well renounce; and it is against form, that the parents being but liferenters, the bairns can be infeft as heirs to a liferenter. It was duplied, That though the bond was conceived in favours of the longest liver of the two parents, yet seeing the children are not infeft, nor can be infeft under the general name of children, and children might have failed, and may fail to be more or fewer of the marriage, as providence disposeth, it is just alike as if the bond had been conceived in favours of the heirs of the marriage; but with this difference, that if it had been in favour of the heirs, the right of sonship would have been preferred. Now, if it had been so conceived, no question the heirs of the marriage would have been infeft as heirs to their father; consequently the bairns, whether sons or daughters, or both, must be served as heirs of provision to the father; and in this case the word liferent must resolve in a conjunct-fee.
The Lords found that the bairns should be infeft as heirs of provision to their father, and renounce.
