Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION I.

In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.

Right taken to Man and Wife, and their Heirs.

John Edgar, Chirurgeon-apothecary in Haddington, and Christian Brown, his Spouse,
v.
William Sinclair, of the Parish of St Martin's in London

Date: 23 July 1713
Case No. No 7.

One having, for love and favour to his daughter, and other onerous causes, assigned to her and her husband, their heirs and executors, a certain sum owing to him by a third party, the Lords found that the husband had right to the fee, and the wife to the liferent of the whole.

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The deceased William Brown, chirurgeon-apothecary in Haddington, having, for the love and favour he bore to Christian Brown, his daughter, and for certain other onerous causes, assigned to her and Francis Sinclair, then her husband, and their heirs and executors, 700 merks Scots, owing to him by Alexander Miller of Gourlybank, there arose, after Francis Sinclair's decease, who died abroad, a competition for the sum aforesaid, betwixt William Sinclair who produced a probate of the defunct's will out of the prerogative court of Canterbury, naming him his executor and administrator, and John Edgar, present husband to Christian Brown.

William Sinclair pleaded, That Francis Sinclair, the husband, being conjoined with Catharine Brown, his wife, in the assignation to this moveable sum, he, tanquam persona dignior, was sole fiar, June 9. 1667, Johnston contra Cunningham, No 5. p. 4199; January 23. 1668, Justice contra Stirling, No 25. p. 4228.; January 29. 1639, Graham contra Park, No 23. p. 4226. And Christian has right only to the annualrent of the half of the sum; because not provided to the man and his wife, and the longest liver, but only to her and him, February 18. 1637, Mungal contra Steel, voce Husband and Wife.

Answered for John Edgar; Though usually transmissions to husband and wife infer a preference in favours of the husband, yet that suffers many exceptions, not only in matters of heritage, but even in the transmission of moveable sums, where the design of the granter to make the wife fiar, appears from pregnant presumptions; as in this case, where the right flows from the wife's father, upon a narrative of love and favour to his daughter, the wife is first named, and the husband only in a manner, follows pro interesse. Upon which ground the wife hath a just claim to the fee of the whole; at least she ought to be preferred to the fee of the half, as a common conjunct fiar, the conveyance not being to them in the usual style of conjunct-fee and liferent, which useth to be interpreted in the husband's favours; but the assignation is made to Christian Brown and Francis Sinclair her husband simply, as when a subject is conveyed to several strangers jointly, in which case, the common rule of law takes place, ubi duobus conjunctim disponitur, concursu faciunt partes. Now, this holds more in the case of moveables, which by their nature more easily receive division than lands, and is consonant to the decision, February 2. 1632, Bartilmo contra Hassington, No 20. p. 4222.

The Lords found, That the husband hath right to the fee of the whole, and the wife to the liferent of the whole.

Fol. Dic. v. 1. p. 297. Forbes, p. 708.