Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VI.
Where there is a clause of return, must caution be found to re-employ the money, if uplifted?
Duncan Schaw v. Forbes of Skellitor
Date: 10 November 1687 Case No. No 43.
In a contract of marriage, a husband was bound to employ a sum in conjunct-fee and liferent, and to the heirs of the marriage; whom failing, a certain part to belong to the wife and her heirs. Being a qualified fiar, the husband was found liable to find caution on uplifting the money.
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George Forbes of Skellitor being obliged, in his daughter Jean's contract of marriage with Duncan Schaw portioner of Crathenare, to pay 1000 merks of tocher, to which the husband was to add 2000 merks, and employ it to him and her in conjunct-fee and liferent, and to the heirs to be procreated of the marriage after their decease; which failing, 1000 merks to belong to the wife and her heirs; and being obliged to employ and re-employ the 1000 merks of tocher at the sight of his wife's father, it fell out that the wife died, leaving only a daughter, who died also before the husband: The husband then pursued his father-in-law for the tocher.
Alleged for the defender, That by the contract, failing heirs of the marriage, the 1000 merks was to belong to the wife's heirs, and de facto that case hath existed.
Answered, The pursuer was fiar, and the wife's heirs were but substitute to him by the clause of succession, ‘which failing,’ and so had no present interest during his life, and after his death must be liable to his debts contracted, or to be contracted for onerous or rational causes, as in Andrew Bruce's case, No 3. p. 607 and No 27. p. 4232. 2do, The condition, ‘failing heirs to be procreated,’ did not exist, in so far as there was a child procreated, which survived the dissolution of the marriage.
Replied, Such provisions to wives and their heirs being onerous, they cannot be ineffectual; and whether conceived by way of succession, or of a distinct obligement, perinde est ; for writers of contracts, especially in the Highlands, are not obliged to know these subtleties. 2do, The condition, ‘ failing heirs of the marriage,’ doth not fail by the naked existence of heirs; but quandocunque deficiunt, there is place for the substitute. 3 tio, The other clause, ‘ to employ and re-employ at the defender's sight,’ imports a qualified fee in the husband, and an obligement in favour of the wife's heirs designative, and not as heirs substitute to him.
Duplied, That in Andrew Bruce's case, 1st and 21st December 1680, though the obligement to re-employ was included in the contract, yet the Lords found the wife and her heirs to be heirs of provision to the husband.
The Lords found the wife and her heirs to be heirs of provision to the husband, and decerned the wife's father to pay the 1000 merks to the husband, who was conjunct fiar thereof; but ordained the husband to re-employ the same in, the terms of the contract of marriage, or to find caution for that effect, he being but a qualified fiar; and found, that the existence of the heir of the marriage did not exclude the substitution. But they did not consider how far the wife's heir would be liable to the husband's creditors, or his deeds for rational causes. And this interlocutor differs somewhat from Andrew Bruce's case, where the Lords did not ordain him to employ either the tocher or the conquest, conform to the contract, though there was an obligement to employ and re-employ the tocher and his stock at the sight of the wife's friends. In the reasoning there was difference made between substitutes for onerous causes, as to the husband or granter's power of burdening them. See Substitute and Conditional Institute.
Fol. Dic. v. 1. p. 309. Harcarse, (Contracts of Marriage.) No 386. p. 100.*** Fountainball reports the same case:
In a case debated in presence between Forbes of Skellitor and Duncan Schaw, the Lords found an assignee to a tocher by the husband had right thereto, but with the burden of the conditions contained in the husband's contract of marriage; and that he behoved to find caution to take it in these terms.
