John Callander, Merchant in Edinburgh, v. Carruthers of Holmends
Date: 29 June 1698 Case No. No. 48.
Teinds a distinct subject, and not understood to be comprehended under a right to lands.
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The deceased Holmends having married John Callander's daughter, for his second wife, by a bond of provision, in 1689, is obliged to infeft her in the life-rent of some rooms for her jointure, to belong to her during her life-time, after and from the first term of Whitsunday or Martinmas after his decease; which is interpreted to make her entry, not at the first term after the dissolution of the marriage, by his death, but the second. And accordingly, he being the first deceaser, leaving only one daughter of this marriage, there is process raised by the said John, as her assignee, against this Holmends, on these three heads; 1mo, To pay her aliment, as the Lords should modify it, ay till her jointure should commence; 2do, To pay the aliment of his sister, by-gone, and in time coming; 3tio, To pay her the teinds of her jointure-lands, though not expressly provided, because she is burdened with the Minister's stipend, which, naturally affecting teinds, imports she must have right thereto. Alleged for Holmends, the defender, That he could not be liable to entertain the relict any longer than to the first term immediately after her husband's decease; because that practice was introduced by no law, but only custom, which could not be extended: And though it was pretended there was the same party of reason for both, that the heir is bound to aliment her, ay till her own life-rent provision begin, yet the true reason why he is obliged to entertain her to the next term is, because it is reputed still to be the husband's family, as if the paterfamilias were yet alive, and the servants cannot be sooner dismissed; which reason does not militate after that term. As to the 2d article, The daughter can have no modification of an aliment, since he offered to take her home to his own house, and now de facto she stays with him; and as for her aliment before, it must be presumed to have been ex pislate parentali. To the 3d, Oppones the Obligation, where there is no mention of the teind, which being no fedum separatum, is not carried under the denomination of lands. Replied for the pursuer, That quoad those terms intervening between her husband's death and the commencement of her jointure, it must be understood as if she were left to the legal provision of a terce, to which she restricts it. And to the 2d, There can be no presumption of a donation here; for the mother's jointure was mean, and her assignee intimated his intention to claim it, by raising this process; which sufficiently takes off the foresaid presumption. And quoad the 3d, Though paction alters law, in some cases, yet it is plain here the parties meant to give her the subject out of which stipends are payable, seeing they burden her with the same. The Lords found the heir no farther liable to aliment the widow but to the next term; and would allow no aliment against the brother, but from the time he was interpelled by the citation in this process for aliment; and found all preceding furnished ex pictate, seeing the mother and grandfather are liable in suo ordine, as well as the brother; and assoilzied him since his offer to take her home: And found it has been the design of parties, that she should have right to the teinds of her jointure-lands, though not expressly mentioned, in respect of the quality and burden imposed Upon her by the clause of the right, obliging her to pay the Minister's stipend.
