Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Row v. Rows
Date: 29 June 1676 Case No. No 109.
A mother having alimented an heir and two siters; the heir was found liable for his own aliment, but for that of his sisters he was found not liable, the mother having been presumed to have alimented them ex pictate.
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Janet Row having alimented John, Elizabeth, and Christian Rows, from their father's death which was in September 1671 till now, pursues John Row for his own aliment, and for the aliment of his sisters, which were left infants, which the Lords have oftentimes sustained against their father's heir, having a competent estate. The defender alleged, Absolvitor, because the natural obligation of parents to aliment children is merely personal, and doth not burden any representing them. 2do, The defender's estate is very inconsiderable, not exceeding 300 merks by year. 3tio, The pursuer is their mother, and hath the same natural obligation as their father to aliment them, and having accordingly alimented them, they having no means of their own, it is presumed to have been done ex pietate materna, and she can seek no payment. It was answered, That the mother is not able to entertain them, having a mean provision within L. 100 Scots, and can only be obliged quantum potest.
The Lords assoilzied from the bygone aliment of the two sisters, being alimented by their mother, but sustained the aliment for the heir himself, and resolved to modify the same the more largely, because they allowed nothing for the bygone aliment of the sisters, and ordained the condition of the heir's estate to be instructed, that they might modify his own aliment, and aliment to his sisters, till they were able to fend for themselves.
