Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Hastie and Ker his Mother, v. Hastie
Date: 10 November 1671 Case No. No 53.
Aliment to a posthumous child, unprovided for, is found due by his brother, as representing his father; but only till he has learnt a trade; and on no account aftermajority.
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The deceased A. Hastie, stabler in Edinburgh, having a son and a daughter when he died, disponed to them his whole means, whereof the daughter's part was but an ordinary portion, but the son's part was very considerable. After his death, his wife brought him forth a posthume son, who was destitute of all provision or aliment; whereupon his wife and that posthume pursued his son, craving that a modification might be granted for the wife's expences in childbirth, and for aliment of the posthume son since his birth, and in time coming.—The defender alleged absolvitor from any modification for the wife's expences, because there was no ground for it in law; or for any further than her aliment to the next term after the defunct's death, after which this posthume was born, especially seeing the defender's disposition was long before; and albeit he be unwarrantably served heir, the tutor disclaims it, and will reduce it.—It was replied, That beside the ordinary allowance of relicts, the extraordinary expence of the birth of a posthume, was a debt for which the father was liable, whom the defender represents as lucrative successor, by the disposition posterior to the conception of this child, nam in beneficiis qui in utero est pro jam nato habetur.
The Lords Sustained the libel, and modified in respect of the reply and disposition.
The defender further alleged the libel was noways relevant, as to any aliment for the posthume; for though parents be obliged to aliment their children, yet there is neither law nor custom obliging a brother to aliment his brothers, especially where the brother doth not represent the father.—It was answered, The libel was not founded upon the brother's obligement, but upon the father's obligement, whom the brother represents by the foresaid disposition, which the Lords had in several cases allowed, especially in the case of the Children of Netherlie against their Brother, No 50.; and there can be no case more favourable than a posthume, whom the father did not neglect or pass by, he being gotten but shortly before his death.—The defender answered, That the father's obligation to aliment his children is personal, et non transit ad heredes; and as to the practique, that it was collusion between the heir's tutor and the bairns.
The Lords found the defender, as representing his father by the disposition of his goods, liable to aliment this posthume child during his minority, at least so long of his minority as he was without calling or means to aliment himself; but would not extend it after his majority.
