Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Thomson v. Wilkie
Date: 23 July 1678 Case No. No 57.
A sister succeeding to the means of her father and mother, found liable in expence of alimenting her furious brother; but that only in so far as she was lucrata, by being freed from entertaining him in her own family.
Click here to view a pdf copy of this documet : PDF Copy
Umquhile Walter Wilkie having several children, one called Thomas became furious before his father's death, and his father provided nothing to him, but made his relict his executrix and universal legatrix, who entertained the said Thomas during her life; and after her decease, William Thomson having married Lucas Wilkie his sister, he entertained him 14 years, and now pursues Agnes Wilkie, who succeeded to the whole means of both father and mother, for the aliment of the furious person, in respect that it was a duty by the law of nature, both upon his father, and in case he had no means, upon his mother, to constitute an aliment for him during his furosity, according to their means and estate, which therefore must affect all representing them.—The defender answered, That the law and custom of Scotland hath only extended aliment of children against fathers personally, and never against mothers, nor against any representing either. 2do, This aliment being bestowed upon the furious person by his own sister, without any agreement, must be presumed to be of charity and natural affection, and introduces no obligation, especially having continued 14 years after the death of both parents; and if it had been otherways intended, the pursuer ought to have required the defender so have accepted of the furious person in her family, and could not crave a modification to entertain him elsewhere.—The pursuer answered, That the Lords had made this natural obligation effectual, not only against fathers, but against mothers, where the father left no means, as was found in the case of the Children of E. Buchan contra the Countess of Buchan, No 45.; and also against the heirs, as was found in the case of the Children of Otter, No 49. and Netherlie against the Heirs thereof, No 50. And albeit the Lords has found that the entertainment of persons who can contract, is presumed gratuitous, unless there be an agreement, yet it is neither extended to pupils nor furious persons, who can make no act nor agreement for themselves.
The Lords sustained the process, and ordained a modification according to the means of the father and mother, whereunto the defender succeeds, and only in so far as she is lucrata, by being freed of entertaining the furious person in her own family.
Fol. Dic. v. 1. p. 32. Stair, v. 2. p. 639.*** Fountainhall states the same case thus:
William Thomson pursues Agnes Wilkie for paying him the aliment of her brother, who was fatuous.—Alleged: As representing her father, she was not liable, because his obligation, jure naturæ, died with himself, nor as representing her mother, non tenetur alere; and, as sister, the pursuer was as much concerned, having married another sister; and it is presumed he did it ex officio pietatis; and, in law, a sister is not bound to entertain her brother.——The Lords found his father should have provided him, since he was not capable to serve or work; and, therefore, found the defender, as representing the father and mother, bound to aliment him, secundum vires hereditatis.
