In questions between parents and children, who understood to be fiar.
Subject_3 SECT. IV.
Whether it is expressed, that the Father is Liferenter only.
Christian Cumming v. His Majesty's Advocate
Date: 10 February 1756 Case No. No 57.
A father took a charter of lands to himself in liferent, and to his son nominatim in fee. He reserved power of disponing the lands. On this charter infeftment was taken. After the son's death, the father executed his reserved faculty, by disponing the lands to his grandson. The grandson was forfeited. The widow of the son found not entitled to a terce of the lands.
Click here to view a pdf copy of this documet : PDF Copy
In the year 1692, Adam Hay obtained a charter of the lands of Aslied, to himself in liferent, and to his son Andrew in fee; whom failing, to certain substitutes.
By this charter there was reserved to Adam a power of contracting debt, and of disposing of the lands. Infeftment was taken upon this charter.
Andrew died; and Adam, in the 1726, executed the reserved faculty, by disponing the lands of Aslied to his grandson Adam Hay; whom failing, to the substitutes contained in the charter 1692.
This Adam, after the death of his grandfather, engaged in the rebellion 1745, and was forfeited. His estate was surveyed for the Crown. Christian Cumming, the widow of Andrew, entered her claim for a terce of the lands of Aslied, in the fee whereof her husband had died infeft.
Objected for his Majesty's Advocate; The property of the estate of Aslied must, in respect of the reserved faculty, be held to have been in Adam; his son Andrew was a nominal fiar only; and consequently his widow is not entitled to a terce.
Answered for the claimant; By the deed 1726, Adam meant to save his grandson the expense of a service to Andrew, not to recall the fee which had been vested in Andrew. Neither could he prejudice the right of the claimant which had already taken place by the predecease of her husband Andrew; at least no personal deed of his could be effectual in competition with his singular successor's deriving right from Andrew, or with Andrew's creditors infeft. See the case, Rome against the Creditors of Graham, February 1719, No 17. p. 4113; and, by parity of reason, such deed cannot be good, against the widow claiming a terce; for that a widow, as to her terce, is upon the same footing as a creditor with infeftment.
‘The Lords dismissed the claim.’ See Terce.
Reporter, Auchinleck.Act. Burnet.Alt. M'Queen & King's Counsel.
Fol. Dic. v. 3. p. 310. Fac. Col. No 185. p. 276.
