In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.
Right taken to Man and Wife, and their Heirs.
Fergusson v. M'George
Date: 22 June 1739 Case No. No 9.
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A bond bore the sum of 1000 merks, to be received from the husband and wife, obliging the debtor “to repay the same to the husband and wife, and longest liver of them two, their heirs, executors, or assignees.” The marriage having dissolved by the predecease of the husband without children, the question occurred betwixt the relict and the husband's children of another marriage, which of them was fiar? Pleaded for the Children, That the husband was undoubtedly fiar, and in dubio the fiar's heirs must be understood to be called. Answered, 1mo, Esto the husband had been fiar, the wife succeeded upon her survivance, and then her heirs are understood to be called, as being the heirs of the fiar. 2do, The meaning of the clause is the same as if the bond had borne, ‘and to the heirs of the longest liver.’ The Lords preferred the relict, and found that the bond belonged to her as longest liver. See Appendix.
Fol. Dic. v. 1. p. 298.*** Kilkerran reports the same case:
Where a bond bore the sum to have been received from husband and wife, and was taken to the man and his wife, and the longest liver of them two, ‘their heirs, executors, and assignees,’ the marriage dissolving by the predecease of the husband without children, the sum was found “to belong absolutely to the wife as longest liver;” several of the Lords dissenting, who were of opinion, that it resolved into a liferent only to the wife, agreeable to the express opinion of Craig, L. 2. Dieg. 22. and that the construction put upon that opinion of Craig's, that it referred only to proper feus and not to money, was without foundation, his reasoning in that passage applying to the one as well as to the other.
There was no doubt but the husband was so far fiar, as not only to have the disposal of the money during his life, but that it was also affectable by his creditors. But the question turned upon this, Whether by the words, their heirs, were only understood the heirs of the marriage, who alone could be properly called their heirs, and that the further substitution of the husband had per errorem been neglected, as Craig dicto loco; or if the natural force of the words, their heirs, in this case, was the same as if the bond had borne, and to the heirs of the longest liver? Which last prevailed as above.
