In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. III.
Where the Wife's Heirs last in the Institution.
James Purdie Merchant in Edinburgh v. David Ross Merchant there
Date: 5 March 1707 Case No. No 31.
A husband was obliged to provide the conquest to himself and his wife in conjunct fee and liferent, and to the children to be procreated betwixt them; whom failing, the one half to himself and his heirs, &c. and the other half to the wife's heirs, &c. There being no children, the husband's heir was ordained to procure himself infeft in the conquest, and to dispone the half with warrandice from fact and deed to the wife's assignee, tho’ the husband was fiar.
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It being provided by contract of marriage betwixt the deceased David Young merchant in Edinburgh, and Katharine Mitchell, that all lands, heritages, annualrent, sums of money, and others to be conquest during the marriage, should accresce and pertain to them and the longest liver, and the bairns to be procreated betwixt them; and failing these, the just and equal half should pertain to the said David Young, his heirs, executors, and assignees; and the other half to the wife's heirs, executors, and assignees; and the said David being obliged to take the securities of the foresaid conquest in the terms above written, Katharine Mitchell, after her husband's decease, without heirs of the marriage, obtained a decreet before the Bailies of Edinburgh against David Ross merchant there, as heir to the said David Young, decerning him to infeft himself in the lands therein mentioned, and to dispone the equal half, with warrandice from fact and deed, to the said Katharine Mitchell, her heirs and assignees, in the terms of her contract of marriage. This decreet, with the whole clauses in the contract in her favours, being disponed by her in the 80th year of her age, to James Purdie merchant in Edinburgh, for love and favour, and, as was alleged, in contemplation of marriage; he thereupon charged David Ross with horning, who suspended upon this ground, that Katharine Mitchell by the conception of the clause of conquest had only a liferent right, and the husband was fiar; seeing the provision, that failing children of the marriage the one half of the conquest should belong to the-husband's heirs, and the other to the wife's, did only make her heirs of line, heirs of provision to the husband in the one half; January 29th 1639, Graham contra Garden, No 23. p. 4226.; December 1st and 21st 1680, Anderson against Bruce, No 3. p. 607. & No 27. p. 4232.
Answered for the charger; The husband being fiar, the suspender is liable as representing him, to perform his obligement in favours of the wife, her heirs and assignees, which was not performed by himself. For had the husband, in the terms of the contract, taken the rights of the conquest to him and her in conjunct fee, and the heirs betwixt them; which failing, the one half to his own heirs, and the other half to her's; she surviving would have been liferenter of the whole, and a conditional substitute fiar in the half; in which half she and her heirs might be served heirs of provision to the husband; but since the rights of the conquest were not so taken by the husband, the clause in the contract, in favours of the wife, her heirs and assignees, remained in the terms of a personal obligement, which the suspender, his heir, is obliged to perform.
The Lords found the letters orderly proceeded.
Fol. Dic. v. 1. p. 300. Forbes, p. 138.*** Fountainhall reports the same case:
David Young, in his contract of marriage with Katharine Mitchell in 1646, obliges himself to take the securities of all lands, heritages and tenements, that he should purchase and acquire during the standing of the marriage to himself, and his spouse in liferent and conjunct fee, and to the bairns to be procreated in fee; which failing, the just and equal half thereof to his heirs and assignees; and the other half to his wife and her heirs and assignees. During the marriage, he purchases several houses in Edinburgh, but does not take them in terms of the obligement foresaid, contained in his contract of marriage, but to his own heirs and assignees whatsoever. After all this, in 1683, he gives her a general disposition and assignation to all his estate, heritable and moveable, (their children being all then deceased) but adjects ‘for her liferent use allenarly,’ and then follows the clause, that in case of her surviving him, the one half should go to his heirs, and the other to her heirs and assignees. Young, the husband, being the first deceaser, his widow assigns over her right to the half, to James Purdie, whom it was supposed she designed to marry, though she was then very aged; and he pursues David Ross, her husband's nephew, to enter heir to Young his uncle, and infeft himself in the lands and houses acquired, and then to denude and dispone to him, as the wife's assignee, of the equal half, in the terms of the contract of marriage. Alleged for Ross, That however these clauses at the first view seemed to import a fee to the wife, yet the sensus verborum, and not the cortex, is to be adhered to; and although the literal position and grammatical construction may point at a fee, yet our lawyers have ever had that deference to the husband as the dignior persona, and the sexus nobilior, that they have lodged the fee in the man, and resolved these clauses into a mere liferent quoad the wife, judging it unfavourable to make them fiars of the husband's estate to the prejudice of his heirs; and so it was interpreted in the action pursued by Anderson contra Bruce, 1st and 21st December 1680, No 3. p. 607. & No 27. p. 4232.; where he having provided a part of the conquest to Helen Biccarton in his first contract, the Lords found, that this could not hinder him to provide it to the bairns of the second marriage, he being fiar and dominus, and so had the power of disposal. Answered for Purdie, That the principles of law were quite mistaken and misapplied; for he did not assert the wife to be fiar, but only creditor to the husband in a personal obligement, to force the husband's heir to denude; and her heirs of line quoad this right would not be heir to her, but behoved to be served substitute-heirs of provision to the husband; and it was uncontroverted, that the husband was fiar, and might have disponed the tenements to whom he pleased, and so evacuate his wife's right; but not having done it, she had a clear action against his heir to denude of the half; and so it was found betwixt the L. Dumfermline and the E. of Callander, No 7. p. 2941.; and the case cited with that of Graham against Park and Garden, No 23. p. 4226. had not such positive clause as this here is. The Lords repelled the defence, and found the wife's right to the half preferable, and decerned. One may think his taking the rights of the houses to himself and his heirs was an alteration of the contract, and disposing of it otherwise; yet the subsequent assignation to his wife, shewed his intention to return to the settlement he had made in his contract of marriage long before. This was so decided, me referente.
