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.
Hamilton v. Hamilton
Date: 7 February 1682 Case No. No 8.
In an action at the instance of the apparent heir against a liferenter, for aliment, the Lords considered the estate as it was at the defender's husband's death; so that, if it was not then exhausted by liferents or debts, no aliment was due.
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In the action for aliment, pursued at the instance of Robert Hamilton, fiar of the lands of Airdrie, against Margaret Hamilton, one of the liferenters thereof, wherein he libeled, That the estate, whereof he was fiar, was exhausted by liferents and debts, so that he had not a maintenance:—it was alleged for the liferenter, That there could be no aliment, in respect that the liferent was constitute in her contract of marriage, by her husband and father-in-law; and that at the time of her husband and father-in-law's death, there was sufficient estate to have alimented the pursuer's father, who was then heir, being brother to her husband: And that if he has contracted debt, or provided a new jointure to his wife, whereby his son the pursuer is prejudged of an aliment, by exhausting the estate, she could not be prejudged by the subsequent deed of the apparent heir.—And it being replied, That the pursuer-needed to say no more, but that he was an heir to an estate which was exhausted by liferents and debts:——The Lords found, That the estate was to be considered as it was at the time of the defender's husband's death; so that if it was not exhausted by liferents or debts at that time, there would be no aliment sustained at this pursuer's instance, who was not immediate heir, but by progress.
Fol. Dic. v. 1. p. 29. President Falconer, No 21. p. 11.** The same case is thus stated by Sir Patrick Home:
Robert Hamilton, eldest son to, the deceased Mr John Hamilton of Airdrie, having pursued Margaret Hamilton, relict of the deceased John Hamilton, his uncle, for an aliment, upon the act of Parliament appointing liferenters to aliment the heir:—Alleged for the defender, That she could not be liable for an aliment, because the debts that exhaust the rents, of the estate were not contracted by John Hamilton, her husband, who granted, her the liferent provision, but by Mr Gavin Hamilton the pursuer's father, who, when he succeeded to the estate, after her husband's decease, it was free of all debts, except for jointure: And the liferentrix is not obliged to give an, aliment to the heir, but only in the case when the rents of the lands are exhausted by the person's debts who grants the liferent.—Answered: That the act of Parliament makes no distinction, whether the debts, exhausting the rents of the lands, be contracted by the immediate predecessor of the apparent heir, or by the party that constitutes the liferent. But it is provided in, general, that conjunct fiars and liferenters, ought to give a reasonable sustentation to the heir, after the quantity of the heritage: So that all that the law considers to make the liferenter liable to aliment the heir is that the rents of the lands be exhausted by his predecessor's debts, so that he has nothing whereupon to live and be maintained; it being thought unjust that liferenters should enjoy a great part of the estate, as in this case, and the apparent heir to want. And as the superior is liable by that act of Parliament, to entertain the apparent heir of the vassal, whether the lands fall in waird, by decease of the apparent heir's father, or any other of his predecessors; so likeways by whose deeds soever the rents of the estate are exhausted, the liferenters are always liable to the heir for an aliment.——The Lords found the liferentrix only liable for the modification of an aliment, if there was not an estate free for the maintenance of the apparent heir, after deduction of liferents and annualrents, the time of her husband's decease: And that there being a sufficient estate then free, the condition of the estate, the time of the apparent heir's father's decease, cannot be respected to make the former liferentrix liable to the apparent heir in an aliment.
