In questions between parents and children, who understood to be fiar.
Subject_3 SECT. I.
Right taken conjunctly to parent and child.
Anne Turnbull v. George Turnbull and Others
Date: 28 July 1778 Case No. No 41.
Import of a legacy to the parent in liferent, and children in fee.
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George Turnbull executed a settlement of his whole effects on his nephew George Turnbull, by which the nephew was burdened with a provision “of 2000 merks to Janet Turnbull his niece, in liferent, and to her children in fee.”
Janet had several children, all of whom outlived the testator, but pre-deceased herself. After her death, this legacy was claimed by different parties. It was insisted, 1mo, for the heir, That the legacy had fallen by the death of Janet and her children; 2do, For Davidson, Janet's second husband, That it belonged to him, jure mariti; 3tio, For Anne Turnbull, That she had the right to succeed to this legacy, as nearest of kin to Janet, her sister-german 4to, For the children of Davidson by a former marriage, That it belonged to them as nearest in kin to Janet's children, their brothers and sisters by half blood.
In this competition, the Lord Ordinary pronounced the following interlocutor: ‘In respect the persons in whose favour the legacy in question was conceived, outlived the testator, and the term of payment thereof, finds, That the same has not fallen, but is now exigible from the testator's representatives: Prefers the children of Davidson, as representatives of his children by Janet Turnbull, to the said legacy, and annualrent due thereon.’
Pleaded for Anne Turnbull, in a reclaiming petition; The provision to the children of Janet was a provision liberis nascituris, as well as to her children then existing. But, as the fee of the subject could not remain in pendente, Janet was, in the construction of law, fiar; and the eventual fee provided to the children imported nothing more than a spes successionis, or substitution, to take effect after their mother's death; Children of Frog contra his Creditors, 25th November 1735, No 55. p. 4262.; Lillie contra Riddell, 1741, No 56. p. 4267.; If the fee was in Janet, the petitioner, as her nearest of kin, must be entitled to take up the succession.
The Court refused the petition, without answers. See Legacy.
Act. Blair.Alt. G. Wallace.
Fol. Dic. v. 3. p. 213. Fac. Col. No 38. p. 66.
