Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION I.

In questions betwixt Husband and wife, who understood Fiar.
Subject_3 SECT. I.

Right taken to Man and Wife, and their Heirs.

Mary Paterson and Others
v.
James Balfour

Date: 6 December 1780
Case No. No 15.

A husband bound himself in his contract of marriage, to settle a certain sum of money, furnished by himself, together with lands belonging to his wife, ‘on himself and his spouse in conjunct-fee and liferent, for her liferent use allenarly, and to the children of the marriage in fee.’ The wife obliged herself to resign her lands ‘for new infeftment to be granted to her and her husband in conjunct fee and liferent, and to the children in fee.’ Upon the death of the husband without issue, 2 question arose between his children of a former marriage and the widow, whether the latter was fiar or liferenter. The Lords found she was fiar.

Click here to view a pdf copy of this documet : PDF Copy

By contract of marriage between John Sword and Jean Glasgow, Sword became “bound to provide, and have in readiness, of his own proper means and effects, the sum of L. 500 Sterling; which, with the sum of L. 360 Sterling of dote or tocher with the said Jean Glasgow, extending both to the sum of L. 860 Sterling, besides and over and above the lands hereafter likewise disponed by the said Jean Glasgow,” he obliged himself, his heirs and successors, to employ upon good security, and to take the rights thereof in favour of himself and the said “Jean Glasgow, his future spouse, and longest liver of them two, in conjunct-fee and liferent, for the said Jean Glasgow, her liferent-use allenarly, in so far as extends to the liferent provision or annuity conceived in her favour, as particularly after-mentioned.” The provision here referred to, was a free liferent annuity of L. 50 Sterling, which, with the conquest of the marriage, in case of no children, and the half thereof if there should be children existing, she accepted in full of all she could demand.

“For the which causes, and on the other part, Jean Glasgow bound herself, her heirs and successors, to make due and lawful resignation of all and hail the eight shilling-land of old extent, of the lands of third part of Giffan, &c. in the hands of her immediate lawful superiors thereof, in favour, and for new infeftment to be made and granted to the said John Sword and Jean Glasgow, in conjunct-fee and liferent, and to the children of the marriage between them in fee.” Then followed a procuratory of resignation, and an assignation of Jean Glasgow's moveable subjects; after which the contract provided and declared, “That the liferent of the said lands of third part of Giffan, which by this contract is provided to the said Jean Glasgow, in case she shall survive the said John Sword, and that there shall be children, one or more, of the marriage, at the time of the dissolution thereof, shall impute in payment pro tanto, to her, of the liferent-provision of L. 50 Sterling conceived in her favour, as before-mentioned.”

John Sword died without issue. His relict, within a year of his death, was confirmed executrix-dative; and in that character brought a multiple-poinding against her husband's creditors. She afterwards sold the lands of Giffan, and conveyed the price to Mr Balfour, as trustee, for behoof of herself and her relations. Upon her death, it became a subject of competition between the Creditors of her husband and the Trustee, in which it was

Pleaded for the Creditors; Wherever there is any difficulty in determining whether a husband or his wife is fiar, the fee is presumed to be in the husband, as the dignior persona; and so the Court have decided in a variety of cases, Dirleton, Stair, 19th June 1667, Johnston contra Cunningham, No 5. p. 4199.; Dalrymple, 21st November 1705, Creditors of Earnslaw, No 21. p. 4223.; Forbes, 23d July 1713, Edgar contra Sinclair, No 7. p. 4201; June 1727, Edgar contra Edgars, No 8. p. 4202.; Stair, 12th July 1671, Gairns contra Sandilands, No 26. p. 4230.; Harcus, Contracts of Marriage, 20th December 1682, Ramsay contra Ramsay, No 28. p. 4234.; Fountainhall, 19th January 1697, Laws contra Tod, No 30. p. 4236.; July 1720, Competition betwixt the Creditors of Elliot of Northsenton and Elliot of Borthwickbrae, No 35. p. 4244.

In the present case, the circumstances tending to shew that the fee was meant to be in the husband are very strong. The whole that Jean Glasgow possessed was no more than a moderate tocher: And, accordingly, both her money and her lands were conveyed by the contract, nomine dotis, and in consideration of the provisions made upon her; Sword obliging himself to lay out the L. 860 Sterling upon good security, “besides and over and above the lands hereafter disponed.” The destination is absolute to the children of the marriage, without any substitution in favour of the wife's heirs; and, had the succession once been taken up by children of the marriage, the heirs of the father, not those of the mother, must have succeeded to them. The subsequent clause, declaring “that the liferent of the lands, which by this contract is provided to the said Jean Glasgow,” should impute in payment, pro tanto, of her liferent-provision, clearly demonstrates, that her right was only a liferent, and that the fee was completely made over and vested in the husband.

Answered; Matters must be very equally balanced, indeed, before a fee can be found to be in the husband, merely as the dignior persona. Neither do the decisions quoted support any such doctrine. In the case of Johnston, 1667, the subject was money lent by the husband, which could not belong to the wife, stante matrimonio. In the case of the Creditors of Earnslaw, 1705, the termination was to the husband's heirs and assignees whatsoever; and to them the wife bound herself in absolute warrandice, reserving only her liferent. The decision, Edgar contra Edgars, 1727, proceeded on the same principle. And in that of Edgar contra Sinclair, 1713, the subject being moveable, fell to the husband jure mariti. The case, Gairns contra Sandilands, 1671, was a very singular one; but there, a little bit of land, being all that the wife brought with her, was provided to the longest liver in fee. The husband survived; yet his daughter, making up titles by precept of clare, as heir to her mother, and possessing the subject found to have belonged to her father, was assoilzied from the passive title. In the case of Ramsay, 1682, the subject was a sum of money, of which the conjunct-fee was not even nominally provided to the wife. The case of Laws, 1697, was very special, and turned upon a question of substitution; but the decision did not necessarily imply that the fee was in the husband. And in that of Elliots, 1720, as stated, it appears, that the last termination was to the husband, his heirs, and assignees, whatsoever.

But, in all questions of this nature, it is principally to be attended to, who is the party to whom the subject belonged before marriage; for there the fee must still remain, unless the contrary clearly appears. The words conjunct-fee and liferent, import no divestiture; and Jean Glasgow, by settling her lands in this way, did certainly not give up the fee, or limit her original right to a liferent.

The clause wherein the money and land are classed together, as conveyed nomine dotis, must be explained and limited by the terms in which these different subjects are afterwards made over. The bonds and bills are assigned absolutely ‘to John Sword, his heirs and assignees whatsoever;’ and he is bound to take the new securities “to himself and his future spouse, in conjunct-fee and liferent, for her liferent-use allenarly.” And, had it been intended to vest the fee of the lands in him, it is presumeable, that the right of his wife would have been limited in a similar manner.

It was altogether unnecessary to insert any substitution in favour of the wife's heirs; for the fee remaining in her, necessarily devolved to her heirs, failing of children of the marriage. And, had such children existed, they could have made up their titles in no other way than by special service to her, the person last infeft in the subject.

Neither is it of the smallest consequence, that, if the succession had once been taken up by the children of the marriage, the lands would afterwards have gone to the heirs of the father, in preference to those of the mother. This is, owing to the genius of our law, which admits no succession through the mother of the deceased. But those circumstances, which regulate the succession after the failure of the first heirs, can have no influence in determining where the original fee was vested.

Nor is it more material, that, in one part of the contract, Jean Glasgow is said, obiter et narrative, to have the liferent of the lands provided to her. This, though certainly true, was not sufficient to deprive her of the fee inherent in her. It was plainly an usus-fructus causalis, which belongs, optimo jure, to every fiar, and which is not in the least repugnant to the idea of a fee in its purest signification; Clerk Home, No 1. Frog, Div. i. Sec. 2. h. t.

Replied; It is a principle maintained by every writer on the Law of Scotland, that, where a right is taken to a husband and wife, in conjunct-fee and liferent, and their heirs, the husband is the sole fiar, “unless the provision bear expressly a power in the wife to dispone;” Stair, b. 3. tit. 5. § 51. And even though the right have flowed from the wife, yet, if it was given her in name of tocher, the fee is in the husband; since whatever is given in tocher is the property of the husband;' Erskine, b. 3. tit. 8. § 36.

Observed on the Bench; That, if the subject in question had appeared to have been settled nomine dotis, the fee would have been in the husband; but, as a separate sum of money was provided in the name of tocher, the presumption in favour of the husband did not hold.

The Court adhered to the interlocutor of the Lord Ordinary, finding, ‘that the fee of the lands was in Mrs Sword, and not in her husband; and, therefore, that the price of said lands is not affectable by his creditors.’

Lord Ordinary, Stonefield. For the Creditors, Ilay Campbell et Alexander Abercrombie. Alt. G. Wallace. Fol. Dic. v. 3. p. 208. Fac. Col. No 4. p. 6.