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. VII.

Rights to Daughters and their Heirs.

Margaret Porterfield
v.
Elizabeth Graham, and Others

Date: 23 June 1779
Case No. No 66.

A bond was granted to a daughter in liferent and her children in fee, with power to the former to uplift and discharge. She was found to be fiar.

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Doctor William Porterfield executed a deed, by which he assigned over to his only child Margaret Porterfield, (wife to Mr Grahame of Gartmore), in liferent, and to the heirs of her body in fee, certain bonds, and the interest remaining due upon them at the time of his death.—This deed contained the following clause:

“With full power to my said daughter, and her foresaids, for their respective interests above mentioned, after my decease, to uplift and receive the foresaid sums of money; and, if need be, to sue therefor, and to grant discharges of the same, which shall be sufficient to the receivers; and, generally, to do every thing in the premises which I could have done in my life. But declaring always, that these presents are granted by me, and to be accepted of by the said Margaret Porterfield, with the burden of the payment of my just and lawful debts, and funeral charges, and all legacies that shall happen to be left by me at my death.”

Mrs Graham, at the time when this settlement was executed, had issue one child, a daughter, and, before her father's death, had other two children, likewise daughters. She survived both her father and her husband. After her husband's death, a doubt arose upon the construction of the above mentioned deed, whether the fee of the sums thereby conveyed was in the mother or in the daughters; and this question was tried in a multiplepoinding brought for that purpose, at the instance of a debtor in one of the bonds.

Pleaded for the mother; It appears, from several parts in this deed, as well as the clause of destination, that the intention of the father was to give his daughter the absolute disposal of the money. She is by the deed, entitled to uplift, to sue for, and to discharge the sums in the bonds conveyed. These are the powers of a fiar, and inconsistent with the mere right of liferent. She is subjected to the payment of the granter's debts, funeral charges, and legacies;—burdens which can, with no propriety, be laid on a liferenter. These circumstances evidently discover the purpose of the father to give his daughter the fee of the subject. Though it were doubtful, therefore, what was the legal meaning of the words in the destination, the intention of the granter, apparent from the other parts of the deed, would regulate the interpretation which they ought to receive.

But the legal import of this conveyance ‘to the daughter in liferent, and to the heirs of her body in fee,’ is to vest the fee in the mother. This point has been determined in cases where the destination was in similar terms; Frog against his Creditors, No 55. p. 4262; Lilly against Riddel, No 56. p. 4267; Douglas against Ainsly, No 58. p. 4269. On the faith of these decisions, and the general practice, settlements are daily drawn up by conveyancers in this form of words, when the party intends to give the absolute disposal of the subject to the person nominally in the right of liferent. A seeming impropriety of language cannot be opposed to what has been thus generally understood by the country as the import of these words.

Answered for the children; The terms of liferent and fee have each a separate signification, totally distinct the one from the other; and, to maintain, that the fee is conveyed by a mere grant of the liferent, involves a contradiction in terms. In the case of land-estates, it has indeed been found, that, where the estate is conveyed to a person in liferent, and his heirs nascituri in fee, the fee must vest in the person provided to the liferent. But these decisions are founded on a mere subtilty in the feudal law: That the fee of the feudal subject cannot be in pendente. There does not seem to be very solid ground for this doctrine, even in the case of feudal subjects; Erskine, b, 2. t. 1. § 3. But, when moveable subjects are conveyed in these term, the principle does not apply. There is nothing to hinder the property of such subjects to be in pendente; and, therefore, there is no reason for constructing the liferent into a fee. The obvious meaning of the words must govern the rights of the different parties in the subjects conveyed; and it has been so found in the case of moveable subjects, Turnbull against Turnbull, No 41. p. 4248.

That the granter used the words liferent and fee in the plain and natural meaning, as expressive of two distinct interests in the subject, is evident from these words of the deed:

“With full power to my said daughter, and her foresaids, for their respective interests above mentioned, after my decease to uplift, &c.”

It is here supposed, that his daughter had one interest, and her heirs another, at the time of his death.

The Court found, “That the fee of the bond in question is vested in Mrs Graham the mother.”

Lord Ordinary, Kaimes. Act. Wight. Alt. M'Laurin. Clerk, Campbell. *** This cause was appealed.

The House of Lords, 17th March 1780, “ordered and adjudged that the appeal be dismissed, and the interlocutor complained of affirmed.”

Fol. Dic. v. 3. p. 210. Fac. Col. No 78. p. 151.