Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. VI.
Mournings. - Funeral Expenses. - Expense of a Posthumous Child.
Barbara Kerr and Thomas Hastie Her Son v. William Hastie
Date: 10 November 1671 Case No. No 124.
A relict is entitled, against her husband's representatives, to the expense of the birth of a posthumous child.
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In an action for aliment pursued at the instance of the said Thomas, against William Hastie his elder brother, as heir to his father, at least successor titulo lucrativo, upon this ground, That the father having made a disposition of his whole estate to the defender, his apparent heir, not knowing the said Barbara his wife was with child, whereas she brought forth the said Thomas, a posthumous child, seven months after his father's decease. It was alleged for the defender, That a brother is not in law obliged to aliment any of his brethren or sisters, aliments being only due by parents, especially in this case, where the father did dispone to his son, by a particular right, the lands and estate belonging to him. The Lords did repell the allegeance, and decerned; reserving to themselves to modify, after probation of the value of the estate; for they found, that as donations by the civil law, made by a father, are revocable ob supervenientiam liberorum, and that by several practiques, where bonds of provision are given to children, superseding the term of payment until they be of a certain age, that in the mean time the heirs are liable to aliment them, albeit there be no obligement in the bond; multo magis in this case, posthume children ought to be alimented Until they be of complete age, or such time as they can be bred with some calling and profession whereby may they maintain themselves, seeing that aliment is in place of all portion they can crave, where the father not by way of testament, but by a disposition, hath provided his apparent heir to his estate.
Fol. Dic. v. 1. p. 396. Gofsord, MS. No 390. p. 194.
*** See Stair's report of this case, No 53. p. 416.
