In questions betwixt Husband and wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
Shaw v. Forbes
1687.
June. Case No. No 29.
In a contract of marriage there was a clause, that failing heirs of the marriage, the tocher should be furthcoming to the wife's heirs or assignees; and the marriage being dissolved by her death, she leaving a child who soon thereafter died, it was found, that even after the child's death, the husband was fiar of the tocher, and that the wife and her heirs were only substitute to him; but he was ordained to employ and re-employ the sum for the use of the wife's heirs, or to find caution to make it furthcoming to them at his death.
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By contract of marriage betwixt Duncan Shaw and Joan Forbes, daughter to George Forbes of Skelliter, the said George being obliged to pay 1000 merks tocher with his daughter, and Duncan Shaw was obliged to add 2000 merks, and to employ the hail 3000 merks upon sufficient land annualrent, or other security, to him and the said Jean Forbes in liferent and conjunct fee, the longest liver of them two, and after their decease, the heirs procreate betwixt them; which failing, the 1000 merks of tocher to be furthcoming to the said Joan Forbes, her nearest heirs or assignees whatsomever; and Skelliter being charged for payment of the 1000 merks, he suspended, upon this reason, that the contract of the 1000 merks of tocher being provided to be made furthcoming to the wife, her heirs, and assignees, failing of heirs of the marriage, and she being deceased without children, the sum doth return to the suspender. The father, as nearest of kin to her, answered, That the sum being payable to the charger, the husband, and the heirs of the marriage, and there being a child born of the marriage that survived the mother, albeit now deceased, yet the existence of a child purifies the condition, and evacuates the substitution that is in favours of the wife and her heirs; and albeit the existence of the child should not evacuate the substitution, yet, by the conception of the contract, the husband being fiar of the sum, he may uplift and dispose of the same at his pleasure, as was decided the 23d January 1668, Justice contra Stirling, No 25. p. 4228. where a clause in a bond, bearing a sum to be borrowed from the husband and wife, and payable to the longest liver of them two in conjunct-fee, and to the heirs betwixt them, or their assignees, which failing, to the heirs or assignees of the last liver, was found to constitute the husband fiar, and the wife liferenter, albeit she was last liver, and the heirs by the last clause were but heirs of provision to the husband in case the heirs of the marriage failed; 1st December 1680, Baillie Anderson contra Bruce, No 27. p. 4232., where a clause in a contract of marriage, providing the husband's present means and the wife's tocher and the hail conquest to be employed for the man and wife in liferent and conjunct fee, and to the heirs to be procreated betwixt them; which failing, the one half to the man's heirs, and the other half to the woman's heirs; and the bairns of the marriage being deceast; was found to constitute the man fiar, and that he was not liable to employ the sum in favours of himself and the wife's heirs, but that he might employ it in favours of a child he had by a second marriage. Replied, That the clause being conceived not by way of condition, but a substitution in favours of the wife, failing of heirs of the marriage, the existence of a child doth not evacuate the substitution, as was decided the 18th June 1680, Oswald against Boyd, No 9. p. 2948. And albeit the charger be fiar, yet being provided to be furthcoming to the wife and her heirs, in case there should be children of the marriage, the wife and her heirs are thereby constituted executors, so that the husband could do no voluntary gratuitous deed to evacuate the said provision; and it appears by the conception of the clause, that it has-been the meaning of the parties, that after the marriage was dissolved, and that there were no heirs of the marriage, that then the tocher should pertain to the wife's heirs.——The Lores found, that by the conception of the clause, the charger was fiar of the sum, and that Jean Forbes his wife, and her heirs, were only substitute to him, and therefore found the letters orderly proceeded; the charger always employing the sum for the use of the wife's heirs or otherways, finding caution to make the sum furthcoming to them after the charger's decease. Thereafter the suspender having given in a petition, representing that the clause in the contract being dubious, and therefore craved that the writer and witnesses in the contract, and commissioners, might be examined, for proving that it was actum et tractatum amongst the parties, that in case there should be no heirs of the marriage, the tocher should presently return to the wife and her heirs, which was refused.
Fol. Dic. v. 1. p. 299. Sir P. Home, MS. v. 2. No 916.
