In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
Laws v. Tod
Date: 19 January 1697 Case No. No 30.
A man in his first contract of marriage obliged himself to take the securities of a sum of his own, and of lands he got in name of tocher with his wife, to himself and her in liferent and conjunct fee, and to the children of the marriage, whom failing, the same to be equally divided betwixt her and his heirs. The husband, as dignior persona, was found to be fiar of the whole, and that the wife's heirs came in as his heirs of tailzie.
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George Tod, by his first contract of marriage with Mary Law, obliges himself to first take the securities of L. 1000 of his own means, and the ten acres of land he got with his wife nomine dotis, to himself and his wife in liferent and conjunct fee, and to the heirs orbairns of the marriage; which failing, the said L. 1000 and ten acres to be equally divided betwixt the man's and wife's heirs. There is one daughter procreated of the marriage, called Sophia; and the mother being dead, the father causes serve the said daughter, when an infant, heir in special to her mother in the half of the foresaid sum and acres; and then the child dying, he enters into a second marriage, and by the contract provides the whole ten acres to the bairns of that second marriage, of which he has only a daughter called Agnes, whom he also serves heir in special to her consanguinean sister; Sophia and the father dying last of all, a debate anent the succession fell out between the heirs of the husband, viz. his daughter Agnes, and the heirs of the first wife, viz. Isobel and Sophia Laws her sisters, who took out brieves for serving themselves heirs of provision to their sister's daughter, quoad the half of both the money and acres; and contended their sister was fiar of that half, and so they came in as heirs of tailzie and provision to her; which they inforced from these arguments: 1mo, That person is always repute fiar on whose heirs the last termination devolves, as here it does on the wife quoad the half. 2do, They alleged, homologation on the father's part by serving his first daughter heir to her mother, and then the second heir to her sister. 3tio, They founded on a decreet that it was res judicata. Answered, That rule has many fallentiæ; for a conjunct fee to a wife, though the last termination be on her heirs, does not make her fiar, but only liferenter and substitute to the husband, ob eminentiam sexus, as has been often found; Durie, 29th January 1639, Graham, No 23. p. 4226.; 20th Feb. 1667, Cranston, No 24. p. 4227.; 12th July 1671, Gairns, No 26. p. 4230. And as to the homologations, his mistake could never give his wife the fee; and the services were only to debar her heirs; and the decreet was opponed to the res judicata, ubi hoc non agebatur who was the fiar. The Lords found, in the conception of such a clause, the husband, as dignior persona, was fiar of the whole; and yet that the first wife's heirs came in as heirs of tailzie and provision, not to her, (who was not fiar,) but to the husband, and that the homologation did not take away his fee; and that his providing the same in the second contract of marriage, being but a voluntary deed only, could not evacuate, frustrate, or take away the substitution in the first contract in favours of the wife's heirs quoad the half; though it was urged by some of the Lords, that he being fiar, might have sold the acres, and spent them, and his creditors could have affected them by diligenee notwithstanding of the substitution. They also found the substitution took place, albeit there was a child of the first marriage served heir, and that the clause quibus deficientibus or whilk failing, was to be understood, quandocunque the same came to fail, then there was room to the next branch of the substitutes, and not to evanish on the existence of an heir as the substitutions in the Roman law did. See Provisions to Heirs and Children.—Substitute and Conditional Institute.
Reporter, Fountainhall.
Fol. Dic. v. 1. p. 299. Fountainhall, v. 1. p. 757.
