Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Lady Lugton v. Hepburne and Crichton
Date: 13 June 1672 Case No. No 107.
In a process at the instance of a grandmother for aliment of her grandchild for 13 years; found that if a doubtful succession should be obtained, the grandmother should be reimbursed, if not, she should be held to have aliment ed ex pietate.
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A decreet being recovered before the Commissaries of Edinburgh, at the instance of the Lady Lugton, against her grandchild Hepburne, daughter to the deceast Laird of Aderstoun, modifying 400 merks yearly, for aliment of the said Hepburne, by the space of 13 years since her birth; the Lords in a reduction and suspension of the said decreet, modified the sum therein contained, being 3500 merks, to the tenth part of the sum of 30,000 merks, which was mentioned in the said decreet, and considered by the commissaries as the estate belonging to the said Hepburne, so that in respect and upon supposition of the same they modified the said aliment; and by reason the said estate was intricate and litigious, and possibly could not he recovered, the Lords ordained the pursuer to assign the tenth part of the said estate, not exceeding 3000 merks, which was done upon that consideration, that the aliment was modified in respect of the said interest; and if ex eventu it should be found, that it could not be recovered, and that she had no estate, it were unjust that she should be liable personally, her grandmother being obliged at least presumed to entertain her ex pietate materna, if she had no estate of her own.
Clerk, Monro.
Fol. Dic. v. 2. p. 142. Dirleton, No 156. p. 67.
