Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs.
Subject_3 Import of the Act:

It is ordained, that where any lands happen to fall in ward to the King, or any baron of the realm, spiritual or temporal, or lands given in conjunct fee or liferent, as well as to burgh as to land, that the sheriff of the shire or bailies shall take surety of the person or persons, that gets or has such wards, that they shall not waste or destroy their biggings, orchards, woods, stanks, parks, meadows, or dovecots, but that they hold them in such kind as they are in the time that they receive the same; they taking their reasonable sustentation, or using, in needful things, without destruction or wasting thereof. “And an reasonable living to be given to the sustentation of the air, after the quantitie of the heritage, gif the said air has na blanche ferme, nor feu ferme land, to susteine him on, alsweil of the ward lands, that fallis to our Soveraine Lordis hands, as onie uther barronne, spiritual or temporal.”

Scots Acts, v. 1. p. 158.

Aiton
v.
Colvil

Date: 25 July 1705
Case No. No 12.

An aliment modified to an heir out of his step-mother's jointure, although he was major, and an advocate, but did not earn a subsistence by his profession.

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Mr William Aiton, of that Ilk, pursues Dame Margaret Colvil, his mother-in-law, for an aliment, in respect his father's estate, being 47 chalders of victual, is overburdened with her liferent of 24 chalders, and 40,000 merks of provision to her children, and other 40,000 merks of extraneous debts; so there was no sufficient estate left to sustain the heir.—Alleged, This process is either founded on the statute of James V. for superiors alimenting their ward-vassals, or super jure naturæ, where one pursues his own mother; none of which holds here, she being a stranger to him, and secured in a jointure by her contract of marriage, which cannot be diminished contra sidem tabularum nuptialium.—Answered, Much of our law is introduced by custom, time out of mind; and this of alimenting heirs is one of them; and much stronger than our positive statutes, and has been ever sustained against step-mothers having exorbitant liferents.——The Lords repelled the defence, in respect of the answer.—2do, Alleged, These aliments were only given in favour of minors, who had no other way of sustenance; but where they were come to age, and had a calling, they were never granted; for that were to encourage idleness; but so it is, the pursuer here is both major and an advocate. And Durie, in two several decisions, 11th February 1636, Sibbald, No 9. supra; and 21st July 1636, L. Ramornay, No 10. supra—tells, that the Lords refused aliments to such as had callings.—Answered, The name of an employment will not afford a man breads; neither is the race always to the swift, nor the battle to the strong; et officium nemini debet esse damnosum: And we have known many advocates who have risen to a great eminency and practice, who, at the beginning, have had little or no employment. And the cases cited do not meet; for, in the first, the grandfather was alive, who had a liferent referred; and it was thought as reasonable he should bear the aliment as the mother. And in the second, non constat; but he was an actual placed minister, and so had a sure fund to live upon; and the mother had but an aliment herself; and it was thought hard to burden one aliment with another.—The Lords also repelled this defence.—Then 3tio, alleged, That the lady was, by her contract of marriage, burdened with alimenting her own children till they were seven years old; and so cannot be farther burdened with the heir.—Answered, The children had an adventitious estate aliunde whereon they might be alimented.—The Lords repelled this also,—4to, Alleged, He was served heir cum beneficio inventarii, and behoved to add this to the inventory, which would accresce and appertain to his father's creditors; and so he could have no benefit thereby: Likeas, there was no real diligence on the estate, by adjudications or infeftments, to debar him from possessing; and so he could claim no aliment; as was found, 13th February 1662, Antonia Birnie contra the Liferenters of Rossie, No 14. infra; and 18th December 1667, Doby contra the Lady Stonyhill, No 15. infra; where personal debts exhausting an estate, were not thought sufficient to found an aliment.—Answered, Aliments were neither arrestable nor affectable by creditors; and so are not to be added to the inventory; and the law made no difference whether he was served or not: And esto, at the time of the father's death, there were on real diligences, but the debts merely personal; yet how soon are they made real, by charging him to enter heir, and adjudging?—The Lords also repelled this; and then proceeded to the modification of the aliment; and finding the lady had 24 chalders of victual, they fixed on the fourth part of it. But the debate arose, whether to give him six chalders of victual, or 600 merks of money? Some were for a locality out of her jointure lands; but that not being judged legal, they fixed on the money, and decerned her in the same; the first half year's payment beginning at Martinmas next. And seeing he was quarrelling her liferent in a reduction, as exorbitant; and so it was contended he could not do both; the Lords thought they might modify in the mean time; for if he prevailed in his reduction, then this aliment would cease.

Fol. Dic. v. 1. p. 29. Fount. v. 2. p. 287.