In questions betwixt Husband and wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
Mr Thomas Ramsay v. Helen Ramsay
Date: 20 December 1682 Case No. No 28.
Found in conformity with Gairns against Sandilands, No 26. p. 4230.
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1000 merks being payable by a wife's father to her husband as tocher, and to the heirs of the marriage; which failing to the wife's nearest heirs, it was contended, That, by the last termination on the wife's heirs, she was fiar; but The Lords found, that there being no restriction as to the husbaud, that he was fiar, and that the heirs of the marriage, and the wife's heirs, were but heirs substitute to the husband; and the wife having never been institute in the conjunct fee, the termination could not give a fee, which clears only which of more persons institute is the fiar.
In this process The Lords found, that the term of payment of annualrent, and not the term of payment of the principal sum, did regulate a bond as to the quality of moveable or heritable, when the party dies, ante terminum. See Heritable and Moveable.
Fol. Dic. v. 1. p. 299. Harcarse, (Contracts of Marriage.) No 348. p. 85.*** Fountainhall reports the same case:
The debate Helen Ramsay and Alexander Aikenhead apothecary, her spouse against Alexander Brown in Eyemouth, and Mr Thomas Ramsay minister at Mordington, being reported by Redfoord: “The Lords found, that by the conception of the bond, the husband, Alexander Brown, was fiar of the 1000 merks given in tocher; and found albeit the term of payment of the principal sum was suspended during the wife's mother's life, yet the term of payment of the annualrent being past before his wife's death, the said principal sum was not moveable, nor fell under the communion of goods, but was heritable quoad fiscum et relictam, so could not belong to the wife's executors; and that there being children surviving the dissolution of the marriage by their mother's decease, albeit there was no confirmation during their lifetime, yet the testament must be tripartite and not bipartite, and the wife's and her executor's part is only a third of the annualrents then owing.”
See Durie, 4th February 1642, Lutfoot, voce Substitute and Conditional Institute. A parallel decision on the 5th January 1670, Innes contra Innes, No 60. p. 4272, was also cited.
1683. February 27.
The case of Helen Ramsay against Mr Thomas Ramsay her brother (mentioned the 20th December 1682) being reported by Redford, “The Lords found no need of her transferring, though James Aikenhead her husband was newly dead; seeing it was but a naked office of executry in her person, and not yet a jus fixum to fall under his jus mariti.”
