Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Straitons v. Laird of Lauriston
Date: 21 January 1679 Case No. No 56.
Younger children, daughters, had provisions payable at their age of 15, or at their marriage with consent. Their brother found-obliged to aliment them, till it should appear whether, and how they would marry.
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The deceased Laird of Lauriston having married his servant, with whom he had two children, by his second contract of marriage with her, ‘he provides the two daughters born to 6400 merks, and each of the children to he born to 3000 merks, and obliges himself to pay the same to them, at their age of 15 years complete, or at their marriage, they marrying with consent of himself, and certain other persons named.’ There being many children of this marriage, they pursue for payment of their portions against their brother, who alleged, That the term of payment was not come till their marriage; for their being two terms expressed, their age of 15 years, or marriage, in alternatives, electio est debitoris.—The pursuers answered, That in provisions of children, which by fatherly affection are extended, and not strictly interpreted, such clauses relative to marriage and a certain age, are always to be understood thus, That simply they are due at that age, but sooner, if they be sooner married; which, though it uses sometimes to be so expressed, yet oft times it doth not bear sooner, but at such an age, or their marriage, but have always taken effect at the marriage, if before that age, but have never been so applied, so as if they never married, never to have right; which is yet more evident in this case, because there is neither aliment nor annualrent provided; so that they should have nothing if never married.—The defender replied, That whatever may be the construction, as to provisions of heirs-female excluded by an heir-male, which must presuppose the father's death, before their provisions can take effect; yet here, where the father himself in life is bound to pay, it cannot be thought that he did not leave himself that latitude, either to pay at their age of 15, or at their marriage, 2do, There are not only here two terms, but the obligation is conditional, viz. They marrying with consent of their father, the defender, and others; and till that condition be purified, they cannot crave payment.—It was duplied, That this condition of consent cannot be interpreted a suspensive condition, putting a necessity upon them to marry, or otherways to have neither stock nor annual; but a resolutive clause, that if they did marry without consent, they should be obliged to restore, which could not hinder them from payment upon caution, in case they should transgress; and the freedom of marriage hath made such clauses only to import that they should demand consent; but if it were refused without reason, whereof the Lords are judges, yet if they married without just exception, their portions should be due.
The Lords found, That the clause, as it is here conceived, obliging the father himself in his own life, was suspensive as to the payment of the stock, till it appear how the children would marry; but that the brother was obliged to aliment them medio tempore, from their age of 15, for which the annualrent of their sums were modified; but it was not determined, whether, if they should never marry, their portion would not belong to their nearest of kin, but absolutely fall to the brother. See Alternative.
