Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Countess Dowager of Caithness
v.
The Countess and Earl Fife, and Sir John Sinclair of Stevenson

Date: 3 February 1767
Case No. No 69.

Whether aliment of a widow, until the first term after her husband's death, the expence of her mourning, and the rent of a jointure-house, fall to be paid by the heir or executor?

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Alexander, late Earl of Caithness, by contract of marriage with Lady Margaret Primrose, became bound to infeft her in an annuity of 4000 merks out of his lands, payable at Martinmas and Whitsunday equally, the first term's payment to commence at either of the terms that should first happen after his decease; and he further obliged himself, his heirs and successors, to provide her in a convenient jointure-house.

Some time after the marriage, a voluntary separation took place between them, and thereupon the Earl became bound to pay to the Countess L. 1000 Scots yearly; which, upon the Earl's succeeding to his brother in the estate of Murkle, was, upon a process brought by the Countess, increased to L. 200 Sterling yearly.

Alexander, Earl of Caithness, died on the 9th December 1765. His real estate, which was very considerable, he settled on Sir John Sinclair of Stevenson; and he was succeeded in his personal estate, (which was also considerable) by his only child Dorothea, Countess of Fife.

The Countess Dowager of Caithness brought an action both against her husband's heir and executor; concluding, that either conjunctly and severally, or one or other of them, should be decerned, 1mo, To pay to her L. 300 in name of aliment, from the day of her husband's death to Whitsunday 1766, the first term at which her liferent annuity fell due. 2do, In payment of L. 600 in name of mournings. And, 3tio, To provide her a convenient jointure-house, or otherwise to pay her L. 100 yearly in place thereof.

It was not much disputed that the Countess had a right to make these claims; but the extravagancy of them was objected to. It was also pleaded against her claim for aliment, That it could not be sustained, in respect that the Countess was living in a state of separation from the Earl at the time of his death, and that the last half year's payment of the separate aliment was made to her at Martinmas 1765, which was for the half year immediately subsequent; and therefore, that allowing her a further aliment for the half year in which the Earl died, would be allowing her a double aliment. And 2do, It was said that the claim for L. 100 yearly, in place of a jointure-house, would not be sustained, in respect there was a jointure-house in the estate of Caithness, of which she was entitled to take immediate possession, and which Sir John Sinclair was willing to give her. But the chief point pleaded was, Whether the heir, or the executor, fell to be made primarly liable in what should be found due to the Countess, of the articles acclaimed by her ?

It was pleaded by the heir, against payment of the aliment, That as it was a personal claim, it fell naturally to be a burden upon the executor; and so it was found in the case, Lady Tursappie contra Laird Tursappie, 20th December 1662, Stair, v. 1. p. 150.*; and it was said, that to find otherways might infer, in certain cases, manifold absurdities. For instance, suppose that the widow had a right to the liferent of the whole of her husband's real estate, the rents becoming due at the next term would belong to the liferenter, in virtue of her liferent; so that her aliment, for the time before her jointure came to take place, would be naturally a burden upon the executry; and in the case supposed, the heir would have nothing where with all to satisfy the claim.

2do, It was said, that the claim for mournings being personal, it undoubtedly fell to be paid by the executors. And

3tio, It was contended, That the obligation to provide a jointure-house ought likewise to be a burden upon the personal estate, providing it was found that the Countess was not obliged to accept of the house offered her, but was entitled to insist for a sum of money in place thereof; for though an obligation to purchase

* See Heir and Executor.

a real right is heritable quoad creditorem, yet it is moveable quoad debitorem; and several instances from the Fol. Dic. of Decisions, vol. 1. p. 369. were appealed to, to show that it has been often found by the Court, that where a husband has become bound, by his marriage contract, to employ a sum of money on land or annualrent, to himself and his wife, and the children to be procreate betwixt them, that such obligation was moveable quoad debitorem, and performable out of the defunct's moveable estate, which was said to be similar to the present case; because, if an obligation to secure a wife in a liferent annuity out of lands, is a personal obligation affecting the moveable estate of the debtor, no reason could be given why an obligation to provide a wife in the liferent of a house, ought not likewise to be a burden upon the personal estate of him who is debtor in the obligation.

It was not disputed by the executor, that the sum which was to be allowed by the Court for mournings to the Countess Dowager, was primarily a burden upon the executry; but it was pleaded, That the aliment fell to be a burden upon the heir, as having a tractum futuri temporis, commencing from the death of the husband, and consequently of the nature of a jointure, which indisputably affected the heir; and to show that it was a debt of that nature, it was said, That if the Countess Dowager had only lived a month after her husband the aliment would have been only due in proportion to that time, and not the whole sum. And,

With regard to the jointure-house it was said, That upon the same principles it could not be doubted that the obligation as to it, or an annual allowance in lieu of it, was prestable by the heir. If a particular house upon the estate had been specially allotted to the Countess, it must undoubtedly have affected the heir; and, in the same manner, an obligation to furnish or provide a house must be incumbent on him, as it is a permanent obligation, having clearly a tractum futuri temporis, and which must be performed during all the years yet to run of the Countess's life.

‘The Lords found the Countess of Caithness entitled to an allowance for mournings and for aliment, not to be influenced by the quantum of her jointure or former aliment; and that the executor of the Earl was liable in payment of these: They also found, That she was entitled to a sum in place of a jointure-house, and that the heir was liable in payment thereof; and remitted to the Ordinary to modify the quantum.’ See Heritable and Moveable.

For the Countess, Alexr. Murray. Alt. Rae et alii. Fol. Dic. v. 3. p. 24. Fac. Col. No 59. p. 101.