Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Stirling v. The Laird of Ottar
1663. Case No. No 103.
Aliment to a a daughter found due to a mother by in extraneous heir. The pietas materna held to have no weight in such a case.
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By contract of marriage betwixt umquhile Archibald Campbell of Ottar and Anna Stirling, the lands are provided to the heirs-male of the marriage; and if there be but one daughter, she is provided to 6000 merks payable by Ottar's other heir-male when she should be fit for marriage, and an occasion should offer. There being but only one daughter of that marriage, whom the mother hath alimented since the husband's death in anno 1651; the mother pursues this Ottar, brother and heir-male to the said deceased Archibald, for the daughter's aliment since the said year, and the daughter pursues for payment of the said 6000 merks. Against the aliment it was alleged, There is none due de pacto, by the contract of marriage, nor by law, and the mother must be presumed to have alimented her daughter ex affectu naturali. It was answered, That there was upon the father, if he had been alive, a natural obligation to maintain his daughter; so his heir succeeding to his fortune is obliged naturally to that same duty; and the mother is not presumed ex suo to aliment her daughter where there is a natural obligation lying upon any other, who has whereupon to discharge that obligation abundantly; and though, according to the usual form, the writer has neglected in the contract a clause for alimenting the daughter; yet seeing nature obligeth to the thing, and there is an estate whereupon to do it, the judge ought to decern accordingly. To the other part of the libel it was alleged, That the term of payment of the tocher comes not till the occasion of a marriage offer, and the sum returns back failing of her by decease without heirs of her body. It was answered, That the daughter was now marriageable, and so long as the money were in the power of the uncle, it would be an impediment of matches to her; whereas, if the money were out of his hands, and secured to be furthcoming, occasions would offer; wherein the defender has no prejudice, since the law will oblige him either to pay annualrent for the tocher, or to grant an aliment equivalent; and the pursuer is content to find caution to make the money furthcoming to such as it shall be found to belong to, failing the pursuer's daughter.
The Lords found the aliment due to the mother, and decerned the defender to pay the principal sum upon caution ut supra.
Fol. Dic. v. 2. p. 142. Gilmour, No 75. p. 56.
*** In the case Wilkie against Morison, 7th July 1675, No 125. p. 5923. voce Husband and Wife, a mother having alimented her son, an infant, until his death, she was found to have action against extraneous heirs, though she liferented his whole effects.
