In questions between parents and children, who understood to be fiar.
Subject_3 SECT. II.
Both parent and children named fiars.
Mr John Pearson v. Martin and his Sons
Date: 12 December 1665 Case No. No 42.
A clause in these terms, ‘Payable to the husband and wife in conjunct-fee and liferent, and to the heirs of the marriage in fee,’ makes the husband fiar, and the heirs only substitutes.
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Mr John Pearson, by his contract with Eupham Martin, did conceive the clause of his tocher in these terms, that it should be payable to him and her, the longest liver of them two, in conjunct-fee and liferent, and to the heirs of the marriage in fee; which failing, to return to the wife's heirs. By a second contract betwixt the husband and his wife, it was agreed that that clause should be altered; and that, failing, the heirs of the marriage, it should return to the man's heirs, who thereupon pursue declarator of right by virtue of the second contract. The defender being absent.
The Lords advised the cause, wherein the difficulty appeared to be, that the tocher was provided to the bairns in fee, so that the husband and wife could not alter the succession, being both liferenters, because that the clause bears to them in liferent, and to the bairns in fee; yet the Lords sustained the declarator, seeing the husband and wife were named conjunct-fiars, so that either of them behoved to be fiar, and the adjection of ‘and liferent,’ could only be understood of the persons that were liferenters, and albeit it was exprest to be the bairns in fee, yet that could be but of a substitution, seeing there were no bairns then existent.
Fol. Dic. v. 1. p. 301. Stair, v. 1. p. 325.*** New byth mentions the same case:
In an innovation of a contract of marriage, sustained at the instance of Mr John Pearson against his own Son, procreated betwixt him and Euphan Martin, Euphan being dead, and who after the marriage did innovate the former contract conceived in her favours, and to the prejudice of her husband; but it was sustained, in regard there was no compearance, and without prejudice of the heir of the marriage his right, conform to the tenor of the contract.
