In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
Cranston v. WilkisoN
Date: 20 February 1667 Case No. No 24.
A husband was obliged by contract of marriage, to take a tenement to himself and wife, and the longest liver of them two, in conjunct-fee, and their heirs betwixt them; whom failing, to the heirs of the husband's body; whom all failing, to the wife's heirs whatsoever. The husband was found fiar.
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By contract of marriage betwixt Wilkison and his spouse, he is obliged to infeft her in a tenement, expressed therein, and in all the conquest during the marriage; which infeftments were to be taken to them, the longest liver of them two in conjunct-fee, and their heirs betwixt them; which failing, to the heir's of the man's body; which failing, to the wife's heirs whatsoever; after which the husband purchased a piece of land, but took the infeftment thereof to him and his wife, and the heirs betwixt them, which failing, to his own heirs whatsomever, omitting the wife's heirs. This Cranston obtains himself infeft in this conquest tenement, as heir to the wife, and thereupon obtained decreet for mails and duties, Wilkison, as heir to the husband, pursues reduction of the decreet upon these grounds; 1st, That Cranston's infeftment, as heir to the wife, was null, because the wife was not fiar, but liferenter; 2dly, The wife having accepted of an infeftment, posterior to the contract, without mention of her heirs, that innovates the provision of the contract, and excludes her heirs.—It was answered, first, That the man and wife being conjunct-fiars, the wife was fiar, and the husband but liferenter; because the last termination of heirs whatsomever, terminated upon her; 2dly, Albeit Cranston had taken his infeftment wrong, Wilkison cannot quarrel the same; because he, as heir to Wilkison, was obliged to infeft him, as heir to the wife; and to the posterior infeftment, it is contrary to the provision of the contract of marriage, and there does appear no accepting thereof by the wife; 3dly, Cranston is not obliged to dispute the validity of this right, because he hath been infeft qualitercunque, and by virtue of his infeftment hath been seven years in possession, whereby he hath the benefit of a possessory judgment, ay and while his infeftment be reduced.
The Lords found, That even by the contract of marriage the husband was fiar, and not the wife; but that the wife's heirs of line were heirs of provision, to the husband, and that if there had been an heir of the marriage, or an heir of the man's body, they could never have been served heirs to the wife; and that by the deficiency thereof, the condition of the fee cannot change; and therefore they found that Cranston was wrong infeft; yet they found the allegeance of his seven years possession relevant to give him the benefit of a possessory judgment, without disputing, whether the provision of the contract of marriage, in favour of the wife, was derogated, by the posterior infeftment, omitting her heirs.
