In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.
Right taken to Man and Wife, and their Heirs.
Walter Wordie v. Margaret Sampson
Date: 18 July 1750 Case No. No 12.
A subject was disponed by a father in his daughter's post-nuptial contract of marriage, to her children in fee; whom failing, to her heirs. The creditors of the husband having pursued a sale of this property, the Lords found, that the fee belonged to the wife.
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Walter Wordie, writer in Edinburgh, pursued a sale of the estate of the deceased Robert Robertson feuer in Bruntston, wherein appeared Margaret Sampson his relict, and claimed, as belonging to her, and therefore to be struck out of the sale, a tenement of land in the Cowgate, and the tack of a shop set by the Town of Edinburgh; for that, by her post-nuptial contract of marriage, Robert Robertson the husband's father, had disponed certain subjects to them in conjunct fee and liferent, and to the children of the marriage in fee; which failing, to the heirs of the said Robert Robertson younger; as also the said Robert Robertson bound himself to provide the conquest to themselves in conjunct fee and liferent, and children in fee; which failing, to be equally divided betwixt their heirs; for which causes, John Sampson wright in Musselburgh, her father, disponed the said house and tack to the spouses in conjunct fee and liferent, and the children in fee; which failing, to her heirs: And alleged, the fee behoved to be understood to belong to her, as the subjects came by her, and were destined to her heirs.
Answered, The fee belonged to the husband, as the subjects were given nomine dotis; for though the expression is not used, they are so really, being disponed for the which causes, that is, for the mutual provisions by the husband; as was found 12th July 1671, Gairns against Sandilands, No 26. p. 4230; and 29th January 1639, Graham against Park and Garden, No 23. p. 4226; a husband being bound to lay out so much of his own money, together with the tocher, in conjunct fee and liferent to themselves, and the children in fee; which failing, to their heirs equally, was found fiar; and 23d January 1668, Justice against Stirling, No 25. p. 4228; a bond to a husband and wife, and the heirs betwixt them, which failing, to the heirs of the longest liver, was found to belong to the husband. It is not the last termination of heirs which settles the fee; but where there are degrees of substitution, the person's heirs who succeed first, Dirleton, word Fiar. Here the intention of the parties appears; for a bond was taken from Robert Robertson and Margaret Sampson, to pay L. 50 Sterling to John Sampson's other daughter: As he was bound to pay this sum he behoved to get the subject; and the obligation was ineffectual as to her.
Replied, The subjects are not disponed nomine dotis; and there was a further tocher of 200 merks Scots given, which was agreeable to the quality of the parties. In the case of Graham against Park, the money was given as tocher; in that of Justice against Stirling, it was money lent by a husband during the marriage; and in that of Garden against Sandilands there was no other tocher. Mackenzie, b. 3. t. 8. § 20. says the husband is fiar, because of the prerogative of the sex; and he is fiar on whom the last termination falls: And Stewart, in his answers to Dirleton, word Fee, says, the last termination determines the fee, contrary to Dirleton's opinion, cited by the respondent; which, however, applies not here, as the destination is first to the heirs of both, whom failing, to those of the wife: And it was found, 22d June 1739, Fergusson against Macgeorge, No 9. p. 4202, that a bond to a husband and wife, and the longest liver, their heirs, &c. belonged to the wife, as the longest liver. The intention of the parties cannot be gathered from the bond, as the wife is taken bound, and was believed so to be; and it is not necessary now to argue whether it could be made effectual against her or not.
The Lords found the fee belonged to the wife.
Act. J. Grant.Alt. Scrymgeour.
Fol. Dic. v. 3. p. 207. D. Falconer, v. 2. No 150. p. 174.
