Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Mrs Barbara Lowther
v.
Murdoch M'Laine

Date: 15 December 1786
Case No. No 71.

Aliment found due by the husband's heir to a wife, who was not entitled to legal or conventional provisions.

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Mr M'Laine of Lochbuy died within a year after his marriage to Miss Lowther, there being no issue of the marriage. He had not received any portion with the lady; nor was any marriage-contract executed. Without claiming the terce, or the jus relictœ, she instituted an action of aliment against the heir of her husband, a distant collateral relation, to whom, by a family-settlement, he had devised his estate; though, being the daughter of a gentleman of some fortune, she could not be said to be in a state of indigence. The pursuer

Pleaded: Claims for aliment arise from the ties of nature; among which, as the relation of husband and wife is the earliest, so it is the strongest. If parents, jure naturœ, are bound to aliment their children, the obligation on husbands to aliment their wives is even superior. Other debts, and particularly alimentary obligations, are continued against heirs. This, then, the most just of all, ought not to cease; and no heir surely can be supposed more liable to the debt of an ancestor than the defender, so remote a relation, to whom an opulent estate has devolved; 10th November 1671, Hastie contra Hastie, No 53. supra; Kilker. voc. Aliment;—8th February 1739, Douglases contra Lady Douglas, No 63. supra;—13th December 1748, Bisset contra Bisset, Select Decis. No 48. supra;—11th February 1764, Seatons contra Seaton, Select Decis. No 68. supra;—8th March 1759, Scott contra Sharp, No 73. supra;—Balfour's Practics, p. 95.*; Fount. v. 2. p. 662. 19th July 1711, Lady Kinfawns contra Husband. See Husband and Wife.

By the Scottish practice, it is true, in cases like the present, no terce or jus relictœ is due. The pursuer, who claims neither, demands only a reasonable sum for her subsistence out of the estate of her husband, in consideration that those legal previsions have failed. If this is to be denied to her, it must be because the usage now mentioned ought to be extended, by analogy, to matters of a different kind from those to which it relates. But it is clear, that this consuetudinary rule ought not to be extended: for, in the first place, it is irrational and unjust; and secondly, it was improperly introduced into the Scots law, in consequence of a misapprehension of that of the Romans.

Marriage being as complete the moment it is instituted as at any subsequent period, or after the birth of children, it is plainly absurd to conceive any reason for legal provisions to exist afterwards which had no place before. The idea is peculiar to Scotland; and even here there is no distinction rested on that foundation, except what respects the terce and jus relictœ. All the other legal rights belonging, to a wife arise on the instant of marriage.

The error, however, was not original in the Scottish jurisprudence. In Regiam

* See the cases here alluded to from Balfour, under Husband and Wife.

Majestatem, lib. 2. cap. 16. 17. where the doctrine of Terce is fully treated, there is not the least intimation of such a rule. Nor are any traces of it to be discovered in the statutes of Alexander II. or of Robert III. respecting the same subject. The earliest appearance of the rule is towards the beginning of the sixteenth century, in the cases of Windezettis contra Logan, and Gyle contra Cant; the first relating to the return of the tocher, and the second to the wife's right in the moveables; Balfour's Practies, p. 95*. As to the terce, the question was not determined till anno 1600, in the case of Lord Gairlies contra Lady Maxwell, Haddington †. Craig, lib. 2. dieg. 22. § 23. But, as on the dissolution of marriage, the dos and donationes propter nuptias, were, by the Roman law, mutually restored; the same rule has been admitted into the Scottish customs, in regard to such marriages as dissolve within the first year, and without any child; Craig, lib. 2. dieg. 22. § 23. Among the Romans, however, there was no right of primogeniture, nor preference of males in succession; in consequence of which circumstances, the dos formed a just proportion of inheritance, and equal to that of any male. When restored, it was a fund for subsistence, and no aliment was wanting. The reverse is the situation of daughters under the Feudal institutions; their dowry is a trifle, insufficient for their support. Besides, the dos, or donationes propter nuptias, were to be restored equally after any period; and, it is obvious, that the Scottish distinction is inconsistent with the end or nature of the Roman restitution.

As a rule, originating in injustice and error, ought not to be extended to new cases, so this proper limitation has been constant in the practice of the Court. Thus, the rule was not applied to the case of a marriage dissolving within the year, a child having been born, though it likewise died during the same period; 20th July 1632, Irvine contra Robertson, Fol. Dict. of Decis. vol. 1. p. 415. (See Husband and Wife.) Nor to that of a father fettling on his son, in contemplation of marriage, a sum which by the son was assigned to his wife, seeing the marriage did not subsist a year; Kilkerran, 7th November 1740, Hood contra Jack, (See Husband and Wife.) Nor to the interim aliment claimed by a widow for herself and her family, between the husband's death and the payment of her provision, the marriage having dissolved within the year, and the provision being secured by a special paction, which did not include any interim aliment; Clerk Home, p. 377. 19th February 1743, Stewart contra Garden, See Clause.

Nay, the rule has been found not to extend to the special case in question. Thus, at a period when the law gave that liberty, a father having put his son in the fee of his estate, without reserving his wife's terce, and by the death of both father and son, the lands having fallen to the superior by ward and non-entry,

* See Husband and Wife.

† See Terce.

first the superior, and afterwards the heir succeeding, became bound to allow the widow a reasonable aliment; Balfour, p. 95. 21st July 1534, Logan contra Campbell and Wallace, (See Husband and Wife.) Again, in the case of Thomson contra Macculloch, Fac. Col. 6th March 1778, No 70. supra the legal provisions of terce and jus relictœ not being adequate, the Court found an additional aliment due to a widow; and it would be absurd to suppose; that if those provisions had been more inadequate, or had not existed at all, the claim of aliment could have been justly denied.

Neither is it incongruous, when circumstances do not admit specific legal provisions, that the law should afford, in another shape, that aliment for which they were calculated. The legitim of children is a specific legal provision for their aliment; but, if it is precluded by the father's effects being converted into heritage, the heir is bound to furnish a competent maintenance to them.

Answered: Apart from the provisions contingent on the subsistence of marriage for year and day, or until the birth of a child, the law of Scotland recognises no claim for aliment at the suit of a wife, against the heirs, as such, of her husband. Nor is this inconsistent with the analogy of our law. However strong-founded the obligation is on parents to aliment their own children, an heir-male succeeding, in prejudice of the daughters of the ancestor, will not be liable to the claim for aliment which lay against their father: A brother succeeding indeed might; but the distinction evidently arises from his fraternal relation. Were not such limitation admitted, inextricable confusion and embarrassment would naturally attend every quick succession of heirs; the obligations to aliment incumbent on one descending to another, and accumulated with his devolving on the next, without any standard for settling the proportion of these multifarious claims. Besides, there is this peculiar to the relation of marriage, that the marriage being dissolved, the law deems the connection thence proceeding to be at an end. Thus, though a father was held to be liable for the aliment of his son's wife, during the lifetime of the son; yet, after his death, the claim was found not to lie; Fol. Dict, of Decif. vol. 3. voc. Aliment; 14th June 1765, Adam contra Sir Andrew Lawder. See Tailzie.

To the argument founded on the case of Stewart contra Garden, the answer is, That the interim aliment was granted, not to the wife, but to the husband's family. As to that of Logan contra Campbell, the marriage had subsisted for the requisite time, and the legal provisions thence arising had been disappointed by fraud. At present they would be wholly restored; at that early period they were restored to a certain extent. The case of Thomson contra Macculloch was an amicable suit; and moreover, the aliment was claimed by a mother from her own son.

That, besides the above mentioned specific provisions, the law admits no claim for aliment at the instance of wives against their husband's heirs, is evident from the explicit opinion of all the writers on our law. Thus Lord Stair, b. 1. tit. 4. § 19.; Bankton, b. 1. tit. 5. § 5. para. 117.; and Erskine, b. I. tit. 6. § 38. concur in declaring, that a marriage dissolving within the year, and without a living child, “all things return to the condition in which they were before;” by “all things” being evidently meant, all claim or interest in the respective estates of the married pair; as to the dos on the one hand, and on the other the donationes propter nuptias, the legal or conventional provisions by the husband to the wife. To suppose that a claim for aliment should still continue, is to figure a contradiction in the law; in rejecting, and at the same time allowing, a demand, the same in effect, and only differing in the shape in which it is preferred. Had such a right remained, it could not have failed to be recognised by the authors quoted above; nor to appear in those decisions which have proceeded on the principle upon which the legal provisions are withheld. In the above case of Stewart contra Garden, for example, why was not a permanent right of aliment insisted on by the widow? In that of Somerville contra Bell, 22d February 1751, Rem. Dec. v. 2. p. 257. (See Husband and Wife;) where a settlement on a wife was annulled on the same ground, would not a claim for a competent aliment have been made, and reserved by the Court, if such an one had been known in law ? Or in the similar case of Cuming contra Garden, 7th February 1781, Fac. Coll. No 28. p. 50. (See Husband and Wife.)

It has been said, That the rule in question is in itself unjust, and that it was by mistake introduced into our law at a late period. But Craig assures us, that the return of the tocher “omnium seculorum usu comprobatum,” lib. 2. dieg. 22. § 23. There seems nothing irrational in having admitted this return from the Roman law, under our limitation; and, being once admitted, that right which was the counter part of the tocher, the quid pro quo, came to be withheld of course. The case of Gairlies, it is to be remarked, related to a conventional provision, so is not to be regarded as the earliest respecting the legal terce. Nor is the distinction of year and day so singular as has been supposed. It is exemplied in the usages of several provinces, counties, or bailiages of France, as Anjou, Brittany, Maine, Touraine; Nouveau Coutumier General, p. 584. And were its foundation in justice ever so questionable, the province of a judge is to determine according to its foundation in law, and ita lex scripta.

The cause was heard in presence, and afterwards memorials were appointed.

A majority of the Court considered the claim of an indigent widow for aliment from the heir of her opulent husband as deeply founded in nature; and that the withholding of the legal provisions, by the operation of the rule of year and day, made the exercise of that natural right necessary; while others of the Judges argued, That this was granting in effect the very thing which the law had denied.

“The Lords repelled the defences, and found the pursuer intitled to a claim for aliment out of the estate of her deceased husband; and remitted to the Lord Ordinary on the bills, to hear parties procurators upon the quantum of the said aliment.”

To this judgment, on advising a reclaiming petition, with answers, the Court adhered.

Act. Dean of Faculty et Cullen. Alt. Lord Advocate, M'Cleod Bannatyne, et W. Campbell. Clerk, Colquhoun. Fol. Dic. v. 3. p. 24. Fac. Col. No 297. p. 456.