Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Lady Tolquhon v. Forbes of Tolquhon, her Son
Date: 29 July 1708
Click here to view a pdf copy of this documet : PDF Copy
Lady Henrietta Erskine, daughter to the Earl of Buchan, and relict of Forbes of Tolquhon, pursues her son, the Laird of Tolquhon, for an aliment out of his estate, till she have a right to her jointure, there being no contract of marriage.
Alleged,—That, she being married again to Mr Abercrombie, brother to my Lord Glassford, he is bound in law to entertain and keep her; and can claim no aliment from her son super jure naturae; which action is only competent when they have no other mean of subsistence: and it is better she depend for that on her present husband than to straiten her son, whose estate is reduced to a very small pittance by his uncle Sir Alexander Forbes' mismanagement and infrugality. 2do, Though she has no contract nor jointure provisione hominis, yet she may claim a terce of what her husband died last vest and seised in, provisione legis. Likeas, she acquired the gift of her son's ward and marriage, by which she might state herself creditor. 3tio, She had sundry intromissions.
Answered,—Her present husband has been forced to pay some debts she had necessarily contracted through her son's ingratitude to her; and his condition is not very opulent. And, for the other claims of a terce and ward, it was her tenderness to her son that made her forbear these, and take the softer methods by an aliment. And, as to her intromissions, they were inconsiderable, and she was willing to count [for] them.
The Lords thought she had mislaid and mistaken her process, and should rather have insisted on the terce and ward. And, as to alimenting super jure naturÆ, her present husband was primo loco liable in that duty and obligation. But, in regard it was an unnatural war, and that they differed much about the extent of Tolquhon's estate, they recommended it to some of their number to settle them.
