A disposition taken to a husband and wife in conjunct-fee and liferent, to the longest liver, for their liferent-use allenarly, and to their children in fee, conveys only a liferent of the subject to the parents, who hold the fee fiduciarie for their children.
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James Watherstone of Kirktonhill, in the year 1781, disponed the lands of Trabown to his daughter Christian, and to George Renton her husband, in conjunct-fee and liferent, and to the longest liver “for their liferent-use allenarly, and to the children procreated, or to be procreated of the marriage, equally in fee.”
Doubts having arisen with respect to the interpretation of this deed, whether it conveyed to the immediate disponees an absolute or a fiduciary fee, an action of declarator was brought at their instance, in which their children were called as defenders, to have it found that they had the power “to sell or dispose of the lands, either for onerous or gratuitous causes.”
The Lord Ordinary reported the cause, but the Court were clearly of opinion, that the point was already fixed, and that after the decision of the House of Lords in the case of Newlands, No 73. p. 4289, they were not at liberty to decern, agreeable to the conclusions of the declarator.
They accordingly found, that there was only a fiduciary fee in the pursuers.
Lord Ordinary, Meadowbank.Act. Macfarlan.Agent, G. Tod.Alt. Maconochie.Agent, J. Dickson.Clerk, Menzies.
Fac. Col. No 5. p. 11.
