In questions between parents and children, who understood to be fiar.
Subject_3 SECT. V.
In questions among Children, who understood to be Fiar?
Isobel and Giles Archibalds v. Ogilvie
1673.
January. Case No. No 61.
A bond being granted to two sisters in fee, and the longest liver of them, neither the husband of the first deceasing, nor her executors, will have right to any part thereof.
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In a double poinding, raised at the instance of Mr Thomas Hay, who was cautioner in a bond of 2000 merks granted to the said two sisters, there being compearance made for the son of Alexander Ogilvie, who had married the said Isobel Archibald, one of the said sisters, to his second wife, it was alleged for him, That he ought to be preferred, at least to the half of the sum due to his mother-in-law; by his father's marriage with her he had right to her part of the sum jure mariti, the bond being moveable. It was answered for the said Isobel, That the bond being granted to her and her sister Giles, and the longest liver of them two, their heirs and executors, her husband dying while both the sisters were alive, no part thereof could belong to her husband's heirs or executors, and he could have only right to her part of the annualrent during the marriage, seeing the fee of the sum was provided for the longest liver of the two sisters, and could not belong to the other sister. 2do, The bond bearing annualrent to be paid during the not payment of the principal sum could not belong to Ogilvie her husband's executor, who survived her, because, by the act of Parliament 1641, such bonds are declared only to be moveable as to all persons nisi quoad fiscum et relictam; and as to Isobel, or her executors, could have had no right, if the bond annualrent had been made to her husband, so neither ought his executors to have right her, dying before her, there being par ratio.—— The Lords did prefer the said Isobel, and found that the fee of the bond could not fall to Ogilvie, nor his executors, unless the said Isobel's sister Giles had died during the said Isobel's marriage with Ogilvie; but, if it had been so, it is thought that it would have belonged to him, and so the wife had only right jure relicti to an half or a third part thereof; and the husband would not have been excluded upon the act of Parliament 1641.
Fol. Dic. v. 1. p. 297. Gosford, MS. No 567. p. 307.
