Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Macculloch v. Macguffock of Rusco
Date: 17 June 1704
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By contract of marriage betwixt Mr William Macculloch, advocate, and Elizabeth Macguffock, daughter to Rusco, there was 9000 merks tailyied and provided in this manner:—To the said Mr William, and Elizabeth Macguffock his spouse, and the longest liver of them two, in liferent, and to the bairns procreated of the said marriage; whilk failing, to the said Elizabeth ana her children of any subsequent marriage; whilk all failing, then to William Macguffock her father, his heirs and assignees whatsomever. William Macculloch being the only child of this marriage, and both his father and mother being dead, he serves himself heir in general to his father, and charges for the 9000 merks. Rusco suspends, on this reason, That there was no sufficient title in the charger's person to the sum; for, by the conception of the clause of tailyie, the wife was fiar: so that a service as heir to his father, who was only liferenter, cannot establish the right in his person; but he must be likewise served and retoured to the mother.
Answered,—Although the last termination centred in the mother's father and his heirs, that was only conditional, in case there had been no heirs of the marriage; but, ita est, he being the only child, he cannot be heir in this sum to his mother, but only to his father. And even where the fee terminates in the wife's heirs, yet the Lords always find, by their tract of decisions, that the husband is fiar, both as the dignior persona, and that the sum is provided to the husband's heirs, in the first place, and only to the wife's heirs failing of them, and who only come in as heirs of provision to the husband; as was decided, 12th July 1671, Gairns against Sandilands and Burn. See Dury, 29th January 1639, Graham against Park; as also Stair, 14th January 1663, Begg against Nicolson; and in his Institutes, lib. 3. tit. 5. sec. 51; and Dirleton, voce Substitution in Bonds; where he is positive that the husband in thir cases is fiar.
Some of the Lords thought it safer that he should likewise serve heir to his mother: but the plurality found it incongruous and unnecessary; and therefore sustained his title as heir to his father, to carry the right of this money.
