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.
James Wemyss, and Balnemoon his Assignee v. John Macintosh
Date: 10 February 1672 Case No. No 50.
A sum being payable to a husband in name of tocher, to be employed to himself and his wife in liferent, and to the heirs of the marriage, was found assignable to, or arrestable by, his creditors, as being fiar thereof.
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Balnemoon being assignee to 2000 merks which Macintosh was obliged to pay to James Wemyss in name of tocher with his daughter, did pursue Macintosh for payment thereof. It was alleged for the defender, That the cedent, James Wemyss, was obliged to employ the said tocher, and other 3000 merks, to himself and his wife in liferent, and to the heirs of the marriage, which he never having done, cannot crave payment, but upon re-employment, and the assignee Balnemoon can have no right thereto. It was replied, That Wemyss the cedent being only obliged to employ the said tocher to himself in liferent, and to the heirs of the marriage, albeit it were so employed, he remained fiar thereof, and might assign the same, seeing the tocher was to be employed to himself and his heirs of the marriage, and not bairns, and that heirs could not be interpreted bairns, it being Wemyss' first contract of marriage; whereas, if it had been to the heirs of a second marriage, it might have altered the case, there being a general heir of a first marriage.
Fol. Dic. v. 1. p. 302. Gosford, MS. No 471. p. 244.
