Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Mary Winrahame v. Mr James Eleis
Date: 15 December 1668 Case No. No 105.
A father becoming debtor to his minor children, by uplifting a bond due to them; his heir being sued for payment, was as soilzied from the annualrents of those years during which the children continued in their father's family; it being presumed that the annualrent of their own stock, was applied, pro tanto, towards their aliment, quia debitor non pręsumitur donare.
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James Murray of Deuchar having married his daughter to James Eleis of Stenopmiln, leaves to the seven sons of the marriage beside the heir, 7000 merks, and the portion of the deceasing to accresce to the surviving; which sum was uplifted by James Eleis, who in his testament nominates his eldest son and heir his executor and universal legatar, and ordains him to pay all his debts out of the first end of his moveables, and then leaves 9000 merks to Patrick his second son, in satisfaction of all that he might succeed to by the decease of the testator his father. Margaret Winrahame, relict and executrix-creditrix to her husband, obtained a decreet before the Commissaries against Mr James Eleis, who suspends on this reason, That Patrick's legacy of 9000 merks, being in full satisfaction of all he could demand by his father's death, must be understood in satisfaction of the said legacy, left by James Murray; which being lifted by James Eleis the testator, and so becoming his debt, debitor non præsumitur donare; 2dly, The Commissaries' decreet is most unjust, in decerning annualrent where there was none due by paction, the sum being but a legacy which never bears annualrent. The charger answered to the first, That the brocard debitor non præsumitur donare, holds not in many cases, especially in provisions of children by their fathers, who are obliged jure naturæ et ex pietate paterna, to provide them; and in this testament, the executor is appointed to pay all the debts without any exception of this or any other, and the testator had a plentiful estate. It can no ways be thought that both the legacy and this sum in question were too great a portion to his second son; as for the annualrent, the father being tutor, and lawful administrator to his son, ought to have employed it profitably, and no doubt did, being a most provident man. It was answered, That the son never having insisted for this sum, nor having ever demanded annualrent during his father's life; it is an evidence he acquiesced to his father's provision, and cannot seek annualrent against his father's executors, his father having alimented him, neither is he liable for that rigour that other tutors are.
The Lords repelled the reasons as to the principal sum, and found that the father's legacy was not in satisfaction of the grandfather's legacy; but found no annualrent due, but suspended the letters simpliciter as to annualrent.
Fol. Dic. v. 2. p. 143. Stair, v. 1. p. 571.*** Gosford reports this case:
Margaret Winrahame as executrix creditrix to her husband, Patrick Elies, did pursue Mr James Elies her husband's brother, as heir and executor to his father, for payment of a legacy of 1000 merks, left to the said Patrick by James Murray their grandfather, and intromitted with by James Elies their father. It was alleged for the defender, That the pursuer having right as said is, could not crave the sum, because their father having intromitted with the said legacy, he had provided the said Patrick his son to the sum of 9000 merks, and that in satisfaction of all that could fall to him through his decease, which provision must be thought to be in satisfaction of the said legacy, in which he was debtor to his son by his intromission therewith, quia debitor non præsumitur donare. This allegeance was repelled, for the Lords found, that the provision of the son not being in satisfaction of the foresaid legacy, or in general of all that the said Patrick could ask or crave, and that a father by the law of nature is bound to provide his children, it did not fall within that general maxim of law, that debitor non præsumitur donare. In this same cause, annualrent of the legacy being craved, upon that ground that the father was administrator to the son, who was a minor, et nummi pupillares non debent esse otiosi, the Lords refused to grant annualrent, because the father having educated his son, and been at the charges of his breeding, they thought, that he should not be liable to pay annualrent for a legacy intromitted with by him belonging to his son.
