Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Claim of John Hay
v.
Officers of State

Date: 26 June 1750

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[Elch. No. 9, Fiar.]

John Hay of Lysterig in his contract of marriage bound himself to provide a sum of money, (by settling it upon lands or other good security,) to himself and spouse in liferent, and to the heirs of the marriage in fee. In a question concerning his forfeiture, the Lords found, That the fee was in him, though the obligation was never executed, and consequently the children were not heirs but creditors, and though by far the greatest part of the money came by the wife.

N.B. This point was hardly pleaded by the bar, but the President said he thought it was the strongest point in the cause; and it appears to me that it might have been pleaded upon one or other of these footings :—1mo, That by the plain sense of the words, the father has only a liferent, and that the fee is given by a subtlety of our law, viz. that a fee cannot be in pendente, which, though it may be admitted in favour of creditors, ought not to be admitted pro fisco ; 2do, That if a fee must be somewhere, rather than go against the express words of the deed, it were better to suppose a fiduciary fee in the father for behoof of the children ; and, 3tio, The maxim cannot here take place, because there is here no fee at all established, but only an obligation to give a fee to children, which obligation we can suppose not to exist till the children are born, and then they are creditors upon the obligation, and can pursue for implement of it ; and why may they not here claim as any other creditors ?