Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Alison Gourlay v. James Urquhart
Date: 17 November 1697 Case No. No 111.
A woman who had a small jointure, entertained her son, paid his prenticefee and funeral expenses. In a suit at her assignee's instance against her son's heir, who was also his cousin, the Lords found that the presumption of entertaining gratis ceased here.
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A mother entertains her son for several years, pays his prentice-fee, and when he dies minor she is at the whole expense of the funerals; and assigning her grounds of debt, the assignee pursues the next heir, for constituting these debts, to affect the heritage he might succeed to as heir to his cousin. It was alleged, Your cedent can never claim these as debts, seeing it is presumed that she alimented ex pietate materna, especially seeing she liferented her son's whole stock, and so jure naturæ was bound to maintain her own son. Answered, Where a mother has such a competent liferent as may maintain both herself and her children, there it may be rationally presumed, that she does it gratis, and by the natural obligation lying upon her to maintain and educate; but if it be such as can hardly maintain herself, as here all she possessed was allenarly four acres of land, paying L. 5 Sterling yearly, the presumption that she did it ex pietate ceases, and what she expended must affect the fee of the acres. It is true, there is a decision, 17th November 1680, Sandilands contra Telfer, voce Tutor and Pupil, where it was found, that a tutor could acclaim no more from his pupil but the annualrent of his stock, and they might not break on the fee; yet there it was not so strait a liferent but it might soberly aliment them both; which was impossible in this case. The Lords found the presumption of entertaining gratis ceased here. Yet if it had been betwixt the son and mother, there might have been more debate; but he who now fell into the fee of the acres, on her son's death, being a stranger to her, the Lords thought it hard to construct what she had furnished to her son as donation quoad him; seeing whatever she might have quit to her son, it is not to be presumed she intended also to gratify thereby his remoter heirs.
Fol. Dic. v. 2. p. 142. Fountainhall, v. 1. p. 795.
