Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Ferguson
v.
M'George

Date: 23 June 1739

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[Elch., No. 5, Fiar; Kilk. No. 1, ibid.]

This was the case of a bond taken to a man and his wife, the longest liver of them two, and their heirs. The wife survives, and, by virtue of this destination, claims the fee of the sum contained in the bond. On the other side, the husband's heirs pretend it belongs to them. The Lords were considerably divided about this question. Some were of opinion, that the husband was sole fiar and the wife only liferenter, in the same manner as in lands or heritable bonds; see Stair, Title Liferent Infeft. 1. 10; and this opinion was supported by the authority of Craig and Nisbet. Arniston was of opinion, that, by the import of the words, the husband and wife were conjunct fiars, each for the half; that the longest liver was sole liferenter; the heirs of the marriage, heirs of provision to both; and in case of no heirs of the marriage, the husband's heir had one half, and the wife's heirs the other.

The President and the majority found, that, in respect of the conception of the clause, and the presumed intention of parties, the survivor was sole fiar. There were two circumstances in this case, which, perhaps, might have had some influence, 1mo, The bond was writ by no man of skill; 2do, There were some presumptions that the money in the bond came by the wife. July 8th, Refused a reclaiming bill, desiring that the sum might be divided betwixt the man and woman's heirs, and gave it solely to the survivor's heirs.