Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION II.

In questions between parents and children, who understood to be fiar.
Subject_3 SECT. VIII.

Provisions to Daughters, to return if they die without Children.

Mr James Baillie, Writer to the Signet, and Inglis,
v.
Nathaniel Gordon of Carleton

Date: 23 July 1724
Case No. No 68.

A man granted a bond to his daughter payable at the first term after his decease, with annualrent from that time, with this proviso, that if she died without children, the sum in the bond was to return to the granter's heirs and assignees whatsoever. The Lords found the daughter was not a liferentrix but a qualified fiar, and though she had no children, sustained action against her father's representatives for payment of the bond.

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

John Gordon of Overbar, with advice and consent of his spouse, granted a bond of provision to his youngest daughter, Janet, for 2500 merks, payable at the first term of Whitsunday or Martinmas after his decease, with annualrent thereafter, and the bond contained the following clause:

“And for eviting all controversies that may arise, in case of the said Janet her dying before she be married, or in case of marriage, decease without having children, or having children, they decease without lawful succession, or she survive them, the the said spouses bind and oblige them, &c. to make payment of the said sum, at the term above specified, to the said Janet; and, in case of her marriage, to her future husband in liferent and conjunct-fee, and the longest liver of them two, and the heirs and bairns procreated in marriage with the said Janet, or her said husband or husbands in fee; whilk sum, so to be liferented by the spouses foresaid, in case of no succession of the said Janet's own body, or she survive them, or they die without succession, then the foresaid principal sum is hereby declared to return after the decease of the said Janet and her husband, and their children, as said is, to our other heirs and assignees whatsomever.”

After Overbar's decease, Janet and Mr Inglis her husband assigned the bond to Mr Baillie, for the behoof of Mr Inglis, who insisted in a process against Carleton, as representing Overbar, for payment of the principal sum.

The defence offered was, That by the conception of the foresaid clause, Janet Gordon and her husband were only naked liferenters; and she having no children, the defender could not be liable for the principal sum, but only for the annualrents during her own or her husband's lifetime.

It was answered; That by the nature of the clause, Janet was fiar of the bond, and the father's heirs her substitutes; wherefore she might, for reasonable causes, dispose of the sum in exclusion of the substitutes; and, that the assignation was not only rational, but onerous, since it was conveyed in name of tocher for her husband's behoof, who had provided her to a suitable liferent: That it never was questioned, but that in the case of a clause of return in a bond, the institute was so far fiar, that he could, for reasonable considerations, dispose of it, January 31. 1679, Drummond against Drummond, voce Fiar, Absolute, Limited; 10th February 1685, The College of Edinburgh against Mortimer, Ibidem, where the ratio decidendi was, that the conveyances were fraudulent, which proves, that they would have been sustained, had they been fair and rational. There was another decision insisted upon, January 1705, betwixt Dalgerno and Durham, Ibidem, “where Hamilton of Boghead having acquired an estate in favours of himself, and Thomas Hamilton his son in fee, and the heirs to be procreate of his body; which failing, in favours of his daughter, and the heirs of her body; which failing, to his heirs and assignees whatsomever,” there was an infeftment expede containing expressly the foresaid substitution; but Thomas evacuated the same by a voluntary and gratuitous disposition in favours of Durham's Son a stranger. Dalgerno, son of the daughter, and likewise heir of line to the maker of the destination, raised a reduction of the right in favours of Durham, as merely gratuitous, in prejudice of the substitution and destination expressly contained in the infeftment. ‘The Lords however sustained the right, in respect Thomas Hamilton was absolute fiar, and assoilzied from the reduction.’ 2do, The pursuer insisted upon these words of the narrative of the bond:

“And for better advancement to a fortune suitable to her degree and quality,”

&c. and contended, That the granter having it in his eye to provide his daughter in a good marriage, it was impossible he could propose to attain his end by so small a provision as the annualrents; and therefore must be supposed to have designed her the fee of the principal sum.

It was replied for the defender; That the dispute was mistaken, for the deed in question was not to be regulated by the ordinary cases of substitutions, or of returns in bonds, because here the father evidently intended, that neither the daughter nor her husband should have the disposal of the principal sum, but only of the annualrents; for, after the obligement to pay, he says, ‘Whilk sum so to be liferented by the spouses foresaid,’ &c. which words are so strong, that it is impossible they can bear another interpretation, than that the spouses were not to be heirs, but liferenters. 2do, As to the arguments from the onerosity and rationality of the deed, and the circumstances brought to show, that the father intended that the daughter should be fiar, it was replied, that these might be of use, if the intention was to be drawn from rules in law, but could be of no avail, where the design appeared to be so clear from the writ. It might indeed seem odd, that after the show the father had made of doing for his daughter, he should have given her only 125 merks yearly, but he intended to give no more, and thought that securing the fee to the children was great enough encouragement to a match.

The Lords found, That the wife was not a simple liferentrix, but that she was a qualified fiar.

The cause was afterwards reported upon the effect of the quality, and the Lords found ‘that she could not assign,’ because the event of her having a husband was in the father's view, and was provided against.

Reporter, Lord Dun. Act. Alex. Menzies. Alt. Ja. Boswell. Clerk, Murray. Fol. Dic. v. 3. p. 212. Edgar, p. 101.