In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.
Right taken to Man and Wife, and their Heirs.
Johnston v. Cunningham
Date: 19 June 1667 Case No. No 5.
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A bond being granted to a husband and his wife, and the heirs of the marriage, which failing, their heirs, was found to pertain to the husband after the death of the wife in solidum; and that these words (their heirs) ought to be understood civiliter of the heirs of the husband, as being persona dignior.
Fol. Dic. v. 1. p. 297. Dirleton, No 85. p. 35.*** Stair reports the same case:
James Johnston, as assignee by William Johnston, to a bond granted by James Cunninghame, charges him thereon. He suspends upon this reason, That the bond bears the sum borrowed from William Johnston and his spouse, and payable to them, the longest liver of them two, and their heirs; there being no children betwixt them, the one half must belong to the heirs of the wife, to whom the suspender is curator, and which he ought to retain for their use; and albeit in such clauses in rights of land or heritage, potior est conditio masculi; yet it is not so in rights moveable; and this bond is moveable, being after the act of Parl. 1641; which was so found in a practique produced, observed by Durie, (No 20. p. 4222.) where the wife, by her contract of marriage, disponing her goods and debts to her husband, herself, and their heirs, the same was found to divide betwixt the husband's and the wife's heirs. —It was answered, That here the bond bore annualrent, and so was heritable, quoad fiscum et relictam; and there being nothing to evidence that the sum was the wife's own means, the same is presumed to be the husband's; and the taking of a bond of this tenor, if it did import to give her the half, is a donation by a husband to his wife, revocable, and now revocked.
The Lords found, that the wife's heirs had no interest in the sums.
