[1677] Mor 394
Subject_1 ALIMENT.
Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs.
Subject_3 Import of the Act: It is ordained, that where any lands happen to fall in ward to the King, or any baron of the realm, spiritual or temporal, or lands given in conjunct fee or liferent, as well as to burgh as to land, that the sheriff of the shire or bailies shall take surety of the person or persons, that gets or has such wards, that they shall not waste or destroy their biggings, orchards, woods, stanks, parks, meadows, or dovecots, but that they hold them in such kind as they are in the time that they receive the same; they taking their reasonable sustentation, or using, in needful things, without destruction or wasting thereof. “And an reasonable living to be given to the sustentation of the air, after the quantitie of the heritage, gif the said air has na blanche ferme, nor feu ferme land, to susteine him on, alsweil of the ward lands, that fallis to our Soveraine Lordis hands, as onie uther barronne, spiritual or temporal.”
Scots Acts, v. 1. p. 158.
Date: Preston of Airdrie
v.
the Liferenters of Airdrie
12 December 1677
Case No.No 21.
The act 1491, comprehends conjunct-fiars and liferenters, as well as donatars of ward.
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Preston of Airdrie being heir apparent of the estate of Airdrie, pursues his mother and his grand-father's second wife, as liferenters of the whole estate, for modification of an aliment to him as apparent heir, conform to the act of Parliament 1491, cap. 25.—It was alleged for the defenders, That the aliments of heirs was only by custom, and could not take place where the liferenters, who were most favourable creditors, had but a just compensation for what they brought in.
——The Lords repelled this defence; and found, by the said act of Parliament, that donatars of ward, and all conjunct fiars and liferenters, should uphold the lands liferented, and aliment the heir.—It was alleged for the old Lady, That the pursuer's father having burdened his estate so, that nothing was free above the liferents, his heir could not return to burden her liferent, albert he might burden his mother's liferent, who ran the hazard of her husband's fortune, and had so near a relation in blood to her son, but the grand-mother was a stranger; and if the grand-father had disponed his estate to his son, and referred his liferent of a part, if the son had dilapidate the fee, the grand-father would not be liable to an aliment; so neither ought the grand-mother; much less the grand-father's second wife. And as to the case of the grand-father, it was so decided in the case of the Laird of Silvertounhill observed by Durie; and in the case of the Laird of Lamington against his Grand-father, decided in the process at the instance of Sir John Whitford against Lamington, February 26th 1675, No 20. supra. The Lords found both the liferenters liable, pro rata, according to their liferent; there being nothing here of the case of the grand-father's disponing the estate, with reservation of his own liferent.
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