Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Edward Maxwell of Hills v. Brown of Inglistoun
Date: 13 July 1669 Case No. No 106.
Found in conformity to Winrahame against Elies, No 108. p. 11433.
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Maxwell of Kirkhouse having left a legacy of about 40,000 merks, to five daughters of Crichtoun of Crawfordstoun's, who uplifted the same; one of the daughter's being married to Alexander Trane, who did assign her part of the legacy to the said Maxwell of Hills, who did pursue Brown of Inglistoun as one of the heirs-portioners of Crawfordstoun, for payment of the principal sum, and annualrents since Crawfordstoun's intromission, as being administrator of law to his daughter; it was alleged, That Crawfordstoun the father had alimented his daughter, and expended great sums of money upon his daughter's marriage, and her cloaths and necessaries in order thereto, and that the legacies by the law bear no annualrent, and so ought to have compensation for the principal sum; to which it being replied that the father did bestow aliment ex pietate paterna, and was obliged to provide his daughter on marriage with all necessaries, and that as administrator he was liable in annualrent for the legacy uplifted by him, which was left by a stranger, the Lords did sustain the defence to assoilzie from the annualrents, but decerned for the principal sum, as they had done before, in the case betwixt the second son of James Elies, and his Relict and Children against the Heir, No 108. p. 11433; where they found, that parents alimenting and providing their children out of their own means, they nor their heirs were not liable for annualrents for legacies uplifted by them left to their children by strangers, they being in a different case from tutors and curators.
Fol. Dic. v. 2. p. 143. Gosford, MS. No 168. p. 66.
