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.
Bonar v. Bonar
Date: 15 February 1709 Case No. No 22.
An idiot is not to be considered as a liferenter, so as to be liable in aliment to the next heir.
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Mr John Bonar of Greigston having been declared fatuous, and an idiot, by the Lords, about six or seven years ago, and so found by an inquest; and Maxwell of Lekiebank being named by the Exchequer, his tutor-dative, for administrating his estate, extending to twelve or thirteen hundred merks per annum, Margaret Bonar, his brother's daughter and apparent heir of line, pursues her uncle and his tutor for an aliment, having no other way to subsist aliunde; and seeing his estate is sufficient to aliment them both, it is but reasonable the Lords modify the same to her, being as yet an infant. Alleged, 1mo, Non constat, she is either presumptive or apparent heir, seeing the lands may be tailzied to heirs-male. 2do, Esto they were not; there is neither law nor practice for aliment in this case; for our acts of Parliament have sustained such processes at the instance of fiars, against liferenters possessing the greatest part of their estates; but it was never pretended that a fiar, having the absolute disposal of his own estate, can be burdened with an aliment to his apparent heir, on the pretence of a remote view of succession,—Answered, The specialty here, giving rise to an aliment, is his fatuity, by which he is so bound up, that he can neither dispone nor alienate, and so is upon the matter a naked liferenter, in which case the adverse party yields an aliment may be craved; and so it is but an easy extension of the law, a paritate rationis, to a case equally favourable; and the Lords have found an elder brother bound super jure naturæ to aliment his younger brother, 24th January 1663, children of Netherlie, (See the next division of this Title); 29th June 1676, Row contra Row, (Stair, v. 2. p. 434. See Presumption); and there is as good reason that the uncle, (who requires no more but an aliment himself,) should maintain his poor indigent niece.——The Lords thought the demand altogether new, without law or president, and that the circumstance of his fatuity did not alter the case; for he might reconvalesce, and this might be as well craved if the fiar were an infant, who could be maintained on a small expence; and therefore found no ground for modifying an aliment in this case, but assoilzied the defender from the libel, as altogether irrevalent.
Fol. Dic. v. 1. p. 30. Fountainhall, v. 2. p. 493.
