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Subject_1 ALIMENT. Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs. Subject_3 Benefit of discussion.
As to the benefit of discussion among those bound to aliment - by the case Preston against Liferenters of Airdrie, No 21. supra, it was found, that two liferenters upon an estate, viz. The mother and grand-mother, were liable to aliment the heir, pro rato, out of their liferents. - The following case regard the same subject of discussion. ###Justis###
The Laird of Kirkland v. His Mother and Grand-mother
Date: 27 November 1685 Case No. No 32.
Grand-mother found obliged to bear her proportion of the heir's aliment, along with his mother.
See No 35. where the contrary found.
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The Laird of Kirkland having nothing to live upon, pursued his mother and grand-mother, liferenters of his estate, for an aliment, both for bygone years and in time coming.—It being alleged for the grand-mother, That she could not be liable for any part of the aliment, because she had quit and given down 800 merks to her son, the pursuer's father. 2do, That she offered to aliment him. And, 3tio, As to bygones, she could not be liable, there having never been any process intented therefor.—It was answered, That whatever she had quit to the father, was by paction; and that notwithstanding thereof, the pursuer had nothing to aliment him, the hail estate being liferented, either by the grand-mother or mother. To the second, That he being an infant, his mother would be preferred to the alimenting of him, rather than his grand-mother; neither was the offer to aliment relevant to elide the pursuit.——The Lords repelled the first and second defences, and sustained the third defence, and assoilzied from bygones; and found, that the liferenter was not liable preceding the intenting of the cause, which was but newly intented.
Fol. Dic. v. 1. p. 31. President Falconer, No 106. p. 74.*** The same decision is thus reported by Harcarse:
The heir and younger children of the Laird of Kirkland, having pursued an action of aliment against their mother and their father's step mother, by whom the estate was entirely liferented:—It was alleged for the said step-mother, That she had already given an abatement of 800 merks to the pursuer's father; and before imposing any further aliment upon her, their mother ought to give a proportional allowance out of her provision.
The Lords did not respect the abatement given to the pursuer's father, his step-mother having yet an opulent jointure; but found, That the heir could have nothing modified for years bygone, preceding the summons, the defenders having bona fide consumed their whole annuities these years. And the liferented lands not being ward-lands, which by act of Parliament are expressly burdened with the heir's aliment, but lands holding feu or blanch, which are only made liable to the heir's aliment by practice, extending the act of Parliament; yet they found, That the mother having alimented her son, the heir, whose property was entirely exhausted by liferents, was presumed to have done it, ex pietate, although action was once competent to him, for these years aliment, against the old liferenter, because no such action had been intented.
The Lords found also, That the mother was bound, jure naturali, to aliment the younger children in familia, they being young.
