In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
Anderson v. Bruce
Date: 1 December 1680 Case No. No 27.
By contract of marriage it was agreed, that 3000 merks, which was the husband's stock, and 4000, which was the wife's, should be employed upon security to him and her in conjunct fee, and to the heirs of the marriage, whom failing, the one half to his heirs, and the other half to her heirs. The wife was found to be only liferent-rix.
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By contract of marriage betwixt Andrew Bruce and Elizabeth Callender his first spouse, it is agreed that 3000 merks, which was his stock, and 4000 merks which was hers, should be employed upon security to him and her in conjunct fee, and to the heirs of the marriage; which failzieing, the one half to his heirs, and the other half to her heirs of any other marriage; which failzieing, to
Bickerton and her heirs whatsomever, and the conquest during the marriage is provided the same way. There were several bairns of the marriage who survived the mother, but died young without issue, neither being entered heirs, nor executors confirmed to her; and her mother being also dead, Major Bickerton, her brother, assigned his right to Baillie Anderson his sister's son, who had also right from his mother, whereupon he pursues a declarator against Andrew Bruce, that the half of the 7000 merks, and the half of the conquest, did belong to Agnes Callender, and to Major Bickerton, as heir substitute to Agnes by the contract, and that Andrew Bruce ought to employ the same for himself in liferent, and for the pursuer as assignee by Bickerton in fee. The defender alledged absolvitor; because, by the clause of the contract, Andrew Bruce himself is fiar, even though the securities had been taken according to the destination thereof; for a conjunct fee between man and wife doth always import the man to be fiar, and the wife to be liferenter; and now his first wife and children being dead, his being substitute heir, could not compel Andrew to employ it, seeing he, as fiar, might dispose of his whole means at his pleasure, which the substitute heirs, being his heirs, would be obliged to perform, and therefore cannot oblige him to employ, or re-employ. It was answered, 1mo, That this clause of destination must have the same effect, as if it had been performed, and Andrew's estate had been employed upon land in the terms thereof, in which case his wife would have been fiar of the half; but though in dubio conjunct fees are interpreted to make the man fiar, and the wife liferenter, yet sometimes it will be contrary, as, if a wife's heritable right be employed for her husband and her, and the heirs between them, which failing, to his heirs, the wife will thereby be fiar, and the husband liferenter; so in these clauses where the estate divides by express paction between the husband and wife, and their heirs, failing heirs of the marriage, there, both husband and wife are equally fiars, and the survivor hath the liferent of the whole; so that though there had been heirs of the marriage, they behoved to have been served heirs to their father in the one half, and to their mother in the other; and so it was found between the Earl of Callender and the Earl of Dumfermline, No 7. p. 2941, where the deceast Earl of Callender's conquest being provided to be employed to them in conjunct fee, and that if there were no heirs of the marriage, the Lady should have power to dispose upon the one half of the conjunct fee, “It was found to make them both equal fiars; and though she did not dispone in her life, yet the Earl of Dumfermline, her heir, was found to have right to the half of Callender's conquest.” 2do, Albeit this clause would infer that Andrew were fiar, and that his wife's heirs were but substitute heirs of provision to him, yet he cannot dispose nor alter that substitution ad arbitrium, seeing it is not an arbitrary tailzie, but is founded upon the wife's interest, and so doth not only import a substitution, but an obligation not to alter it, at least ad arbitrium, but for necessary and rational causes; and therefore as mere gratuitous obligations would not affect the means employed in this destination, but would be held as fraudulent against the just interest of the wife and her successors, so the Lords in several cases have so determined; and it is a general interest among the bairns of several marriages, especially amongst burgesses, that the father cannot apply what is destinate to the bairns of the first marriage, in favours of the bairns of the second marriage, or in favours of the wife. It is true in the case of Littlejohn's second wife, No 11. p. 3190, “Her liferent was sustained, though the whole conquest was provided to the bairns of the first marriage,” and moderate portions to the children of the second marriages, have been found to affect the estate and conquest of the first marriage, though wholly provided to the children of the first marriage, both these being just acts, without fraud, arising from the obligation to provide wives and children, but can never be extended to arbitrary acts, which can be interpreted fraudulent, and which would unhinge the whole securities of children of several marriages. The defender replied, That in conjunct fees the husband is ever interpreted the fiar; and as to Dumfermline's case, there was no mention of any heirs, but only a conjunct fee provided, with a power to the wife to dispone upon the half, which was found to make her fiar of that half, which is not in this case. 2do, As to the husband's power of disposal, where that is intended, it bears that he shall not alter, or at least that he shall employ or re-employ so oft as he lifts; but in this case, though Andrew be obliged to employ the 7000 merks, yet he is not to reemploy it, but to employ it; and albeit he could not ad arbitrium alter the effect of the destination, yet having many children of a second marriage, and none of the first, he may lawfully employ his means, though conquest in the first marriage, for providing the children of the second marriage.
The Lords found, that the clauses of this contract did infer only the wife to be liferenter, and that there being no children of the first marriage, that the husband might employ the sums that he had acquired in that marriage, to provide the children of the second marriage. See Provisions to Heirs and Children. See No 3. p. 607.
