Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lady Maccarston and Captain Guthry, her Husband, v. The Laird of Maccakston, her Son
1672.
January10,and
February1.
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January 10.—A Motherhaving alimented her children, which she was not otherwise bound to do; quæritur, if she will get repetition thereof? It seems she will not, if she be yet a widow, quia præsumitur inter ascendentes et descendentes præstitum ex pietate, and so cessat repetitio; but the presumption fails si præstita sint postquam super induxit vitricum vel si protestata fuerat. Vide omnino Nesennius, 34D. de negotiis gestis .
Advocates' MS. No. 296, folio 123.
February 1, 1672. In the action noted supra at number 296, betwixt Captain Guthry, who had married the Lady Maccarston, and the Laird of Maccarston, her son; the Lords found that a woman, having alimented her children come to years, (though she was at the time clad with a husband,) and made no conditions with them, could have no repetition, because there the presumption of donation takes place; but if they were infants who were not capable of pactioning and entering into terms, then the mother's alimenting them, and not declaring quo ammo she did it, prejudges her not, but she may thereafter crave the same. I think it ought also to be considered, if the children had aliunde sufficient means whereon they might have been alimented according to their rank and quality; in which case, I think the presumption quod mater vellet donare is weak; but if she liferent the whole, or the greatest part, then the presumption is pregnant against repetition.
See this and other two points in the informations beside me. Vide infra February 1676, No. 471, § 3, [Viscountess of Oxenfuird against her Son.] See February 18, 1679, Sibbald of Kair.
