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.

George Wilson, Mason in Edinburgh
v.
John Forrest and Alexander Maxwell, Merchants in Edinburgh

Date: 6 March 1759
Case No. No 13.

A bond was granted to a husband and wife, and longest liver of them, in conjunct fee and liferent, and to the children procreated between them, and their heirs, in fee. The Lords found that the husband, on the death of the wife, had right to uplift the debt without consent of his children.

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In 1754, Messrs Forrest and Maxwell granted bond for L. 900 Sterling, payable at Candlemas 1755, “to George Wilson and Elizabeth Ramage, spouses, or longest liver of them two, in conjunct fee and liferent, and to the children lawfully procreate or to be procreate betwixt them, and to the heirs and executors of the said children, in fee,” with annualrent and penalty as usual: Proviso, “That it should be leisom and lawful to the said George Wilson and “Elizabeth Ramage, spouses, jointly, by themselves alone, without consent of their said children, to uplift, discharge, assign, or otherwise settle and dispose of the foresaid sums of money, in whole, or in part, at their pleasure, notwithstanding of the above substitution.”

At the time the money was lent, and this bond granted, there were a son and daughter of George Wilson and his said spouse existing. Elizabeth Ramage died before the debt was uplifted, or any alteration made upon the destination of the bond. Wilson afterwards insisted for recovering payment of the whole debt, without concurrence of either the son or daughter, who were still living.

Forrest and Maxwell suspended on this ground, that they were not in safety to pay to Wilson the charger, in respect that by the bond the fee of the money was vested in the children, under a reserved power to the father and mother, jointly, of uplifting the debt; and as, during the life of the mother, the money could not have been taken up without her consent, so, since her death, it having become impossible to obtain such consent, the charger could not singly uplift or effectually discharge this debt.

Answered for the charger; That it is clear, from the conception of the bond, that he, the father, is fiat of the sum. Had this money been so provided in a Contract of marriage, there would have been no doubt of the father's powers to uplift and dispose of it for onerous causes, though a restraint might have been implied from the nature of the covenant against gratuitous deeds; but where a man voluntarily lays out his own money in this way during the marriage, without any previous obligation, no restraint whatever is to be implied, nor is any here expressed in the bond. The clause bearing, that the charger and his wife jointly might uplift the sum without consent of the children, was truly superfluous; seeing there is no fee provided to the children that could make their consent necessary; and it was never thought, that a clause declaring a fiar to have the powers he would have without it, could have the effect to deprive him of any of the powers inherent in his fee, and competent to him by the general construction of the deed; as it is a rule, that every man shall have the full exercise of his property, in so far as he is not restrained. The clause would not be sufficient even to tie him down to require his wife's consent, were she alive; and could it be strained so far as to import an interdiction in favour of his wife, while she lived, yet that interdiction must fly off by her death.

“The Lords, found, that the husband, had right to uplift and discharge the bond, without consent of the children, now that the wife is dead; and therefore found the letters orderly proceeded.”

Act. Ferguson. Alt. Rae. Reporter, Strichen. Fol. Dic. v. 3. p. 207. Fac. Col. No 180. p. 321.