In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.
Right taken to Man and Wife, and their Heirs.
Gray v. Gray
Date: 25 July 1672 Case No. No 6.
An infeftment in conjunct-fee, whereby the husband was fiar, was reduced as to the fee ex capite lecti, and yet was found to stand as to the husband's liferent implied in the fee.
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Michael Gibson having but one daughter, married to John Gray, he did dispone certain tenements in Edinburgh, to her and the said John her husband, the longest liver of them two in conjunct-fee, and to the heirs betwixt them; which failing, to John Gray's heirs: Whereupon John Gray and his spouse were infeft, and bruiked five years after the said Michael's death. Margaret Gray, the only bairn of the marriage, serves herself heir to Michael Gibson her goodsire, and pursues reduction of the disposition granted by Michael to her father and mother, as being on death-bed. The defender alleged, That this action could only take effect, in so far as the heir was prejudged by the disposition; ita est, The heir had no prejudice; 1mo, Because the disposition being to the wife in the first place, and not being as a tocher, or for any onerous cause, the wife must thereby be fiar, and the husband only liferenter; and albeit the termination of the heirs be on the husband, that doth not always infer the husband to be fiar, but the husband's heirs of line may be the wife's heirs of provision; for though in dubio potior est conditio masculi, that is but a presumption; and here it is excluded by a stronger presumption for the wife on the contrary. 2do, Though the disposition made the husband fiar, and that there was a lesion, as to the fee, yet the fee doth eminenter contain a liferent; and, as to the liferent granted to the husband, the heir was not prejudged, because if the right to the husband had not been granted, he would have infeft his wife, as heir to her father, and so would have had his liferent by the courtesy of Scotland; so that the heir is in no worse case by this infeftment, in so far as it contains a liferent. It was answered, That this infeftment can never be sustained as a liferent infeftment in place of the courtesy, because the courtesy is only competent to the husband, when the wife dies actually infeft, and when she is heir to her predecessor; but, in this case, the wife was only infeft as liferenter by conjunct-fee; and though she had been infeft as fiar, her husband would not have had the courtesy, because she was not infeft as heir to her father, which only could be after his death; but by his voluntary disposition in her life. It was answered, That albeit the courtesy is only competent where the wife is infeft as heir to her father, yet it doth not necessarily import that she must be infeft as heir served and retoured; for, an infeftment upon a precept of clare constat will be sufficient, and yet she is thereby but heir passive, and she is the same heir to her father by his disposition and infeftment thereon, which is perceptio hæreditatis, and makes her heir passive. 2do, The allegeance is not as if this infeftment were equivalent to the courtesy, but that by this infeftment the heir hath no lesion;: for if it had not been, it cannot be doubted but the husband would have infeft his wife as heir to her father, she having survived her father five years; as if an heir were reducing a disposition on death-bed, it would be sustained, because it was granted for sums equivalent, due by the defunct, albeit he was not obliged to infeft the creditor for these sums; yet, seeing the creditor might, for the same sums, have apprised the lands if he had not been infeft, therefore the heir had no lesion by the disposition, and so it could not be reduced.
The Lords found, albeit this infeftment was reduced, as to the fee, yet that it did subsist as to the husband's liferent, in respect that there was thereby no lesion to the heir; because it is presumed, that the husband would have infeft his wife, and so enjoyed the courtesy, if this infeftment had not been. See Death-Bed, No 16. p. 3196.
