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.

Archibald Seton
v.
The Creditors of Hugh Seton

Date: 6 March 1793
Case No. No 17.

When a subject is conveyed to trustees for a certain person in liferent, and his children nascituri in fee, the father is not fiar.

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Charles Smith, in the contract of marriage entered into betwixt his son Hugh Smith afterwards Seton, and Mrs Elizabeth Seton of Touch, obliged himself to have in readiness by Martinmas 1746 L. 8000, and to employ it on land, or other heritable security, and to take the rights in name of certain trustees for behoof of “Hugh Smith in liferent, and the heirs-male to be procreate of the marriage in fee.”

Charles Smith in part fulfilled this obligation, by purchasing certain lands, and conveying them, together with an heritable bond to the trustees; but at his death there remained a balance of above L. 3000 against him.

The trustees conveyed the lands to Archibald Seton, the heir of the marriage, in terms of the trust.

The heritable bond was paid to Hugh Seton, who was himself one of the trustees, with consent of a quorum.

In the ranking of his creditors Archibald Seton claimed to be ranked as a creditor, 1st, For the said balance which his father owed as representing Charles Smith; and 2dly, For the amount of the heritable bond, which was paid to him as trustee, and had not been employed in terms of the contract,

The common agent, inter alia,

Objected; If Charles Smith, in a simple obligation, had bound himself to convey, or had actually conveyed a certain sum or subject to his son Hugh in liferent, and his children nascituri in fee, Hugh would have been fiar, and the claimant would have had no jus crediti; 1st March 1781, Cuthbertson against Thomson, infra h. t.; 29th June 1786, Muir against Muir, infra h. t.; 7th December 1780, Dicksons against Dickson, infra h. t.; 23d June 1779. Porterfield against Grahame, &c., infra h. t. The same would have been the case though the obligation had been contained in a contract of marriage; 3d June 1748, Gordon against Sutherland, affirmed on appeal, voce Fiar Absolute, Limited; Strahan's Creditors against Strahan, No 105. p. 996.; 15th November 1787, Children of Mactavish against his Creditors, voce Provisions to Heirs and Children; unless the majority of the heir, or some other fixed period had been specified at which Hugh should be obliged to vest the right in his person. There seems no reason for a different construction of the right when it is taken to trustees for the heir, instead of being taken directly to himself. They were not taken bound to denude in his favour at any given time, nor were they prohibited from making a conveyance to the father in liferent, and the heirs-male nascituri in fee, which would have placed Hugh Seton in the same situation as a direct conveyance from his father Charles Smith.

Answered; The legal subtlety which prevents a fee from vesting in children nascituri, is completely removed by the appointment of trustees, who supply their place, and are, while the trust subsists, fiars of the subject. The case then comes to be precisely the same as if the obligation had been taken to the father in liferent, and the children nominatim in fee, when the father, beyond dispute, would have been only a naked liferenter.

The trustees could not denude themselves of the trust before the existence of an heir of the marriage. They then became bound to convey the funds in their hands to Hugh Seton in liferent, aud the heirs nominatim in fee; and so far as Mr Smith had not fulfilled his obligation, to convey it and the jus exigendi in the same terms.

The case is the stronger, that the obligation did not flow from the father, but from a third party, who vested nothing in the father, but a right of compelling the trustees to give him the liferent of the subject, they continuing fiars till the heirs of the marriage obliged them to denude in their favour.

The Lord Ordinary reported the cause on memorials.

The Court were unanimously of opinion, that the effect and sole intention of appointing trustees was to prevent the father from being fiar. The subject (it was observed) was vested in the trustees, who held the fee for behoof of the children, and the liferent only for the father. If they had paid the sum to Hugh Seton, they would, as infringing on the trust, have been liable in damages to Archibald.

The Lords repelled the objection, and sustained Archibald Seton's claim.

Reporter, Lord Swinton, For Archibald Seton, Dean of Faculty. Act. Solicitor-General, Patison. Clerk, Menzies. Fol. Dic. v. 3. p. 209. Fac. Col. No 44. p. 92.