Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Robert Dobby
v.
The Lady Stanyhil, his Mother

Date: 28 January 1668

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Robert Dobby pursues the Lady Stanyhil, his mother, for an aliment, upon this ground, That, she being provided to a plentiful liferent, being an annualrent of 2,800 merks yearly, there remains nothing to aliment him, the heir, of free rent, being all exhausted by the liferent and annualrent of the debt. The defender alleged Absolvitor, because there is no ground in law nor custom for an aliment to the heir, except the rents were exhausted by real burdens by infeftment. But here, at the defunct's death, there was only this liferent, which was not the half of the rent, and there was no infeftment more. 2dly. Aliments are only competent to minors: The pursuer is major, and may do for himself. The pursuer answered, That it was alike whether the debts were personal or real; for, if apprisings had been used, they would all have been real; but the pursuer did prevent the same, by selling a part of the land at a great rate, which was all applied to the creditors, and yet the liferent and annualrent of the debt is more than the rent. Neither is there any distinction in the law as to majors and minors, who were not bred with a calling; and therefore Carberry (who was a man of age) got an aliment; and Anthonia Brown got an aliment from her mother, who had an annualrent in liferent, and the debts were all personal at her father's death, albeit some of them were apprised for before she got her aliment. The defender answered, That there was a sufficient superplus, because she offered to take the lands, or find sufficient tenants therefor, for 4,300 merks yearly, which was £1000 above her liferent, and would exceed the annualrents of all the debts. The Lords found this last defence relevant; but did not proceed to determine whether an aliment would be due where the burden was but by personal debt.

Vol. I, Page 515.