Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Mr Alexander Brown of Thornydikes the Elder,
v.
George Brown his Eldest, and Alexander Brown his Second Son

Date: 20 July 1710
Case No. No 82.

Children bound to aliment their parents.

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Old Thornydikes having, after providing George, his eldest son, in his contract of marriage, to L. 100 Sterling yearly during his own lifetime, and to the fee of the lands of Thornydikes, disponed the lands of Bassindean to Alexander his second son, in his contract of marriage; whereby the old father, denuded of all, and reduced to extreme want and misery through his exuberant fondness for his children, was necessitated to pursue a process of aliment against them: Founding his claim upon the law of nature and nations, That obligeth children to maintain their indigent parents, though they got nothing from them; and much more obligeth the defenders to allow beneficium competentiæ to their aged father, who divested himself of his all in their favours, L. 5. §. 2. ff. de agnoscendis et alendis liberis et parentibus, L. 1. eodem.

The defenders did not much controvert the pursuer's title to an aliment, but each of them endeavoured to free himself of the burden, by throwing it over upon the other.

Alleged for the eldest son: He could be liable to no part of his father's aliment, till the lands of Bassindean, disponed to the second son, be first discussed; because, when the eldest son got the lands of Thornydikes disponed to him, his father retained a competency to subsist himself and his family; and it was by his posterior disposition to the second son, that he was reduced to misery and the want of bread; which beneficium ordinis is agreeable to the decision, 7th January 1682, Hamilton fiar of Airdrie, contra Hamilton, No 8. supra.

Answered for Alexander Brown the second son: Both their dispositions from their father, are in pari casu, and upon a level, except that the subject disponed to Alexander is scarce the half of what the eldest son got. The pretence that the second son should be discussed before the eldest, is altogether imaginary, and without any foundation; seeing the tie upon children to aliment their parents, is not founded so much upon positive law, as upon the law of nature, whereby there is no order of discussion among those of the same degree; who, being equally near in point of relation, are liable pro rata according to their abilities and circumstances. And if any beneficium ordinis were competent, it would turn the burden in the first place upon the child that enjoys most of the parent's means, and consequently upon the eldest son in this case, who has a double portion. The practice betwixt the Fiar and Liferentrix of Airdrie is alien from the purpose; for there the liferentrix was assoilzied from alimenting the heir; not only because at the constituting her liferent, there was a sufficient separate estate to maintain him, but also because he had no blood-relation to her.

The Lords modified an aliment to L. 50 Sterling to the pursuer, whereof L. 30 should be paid by the eldest son, and L. 20 by the second.

Fol. Dic. v. 1. p. 33. Forbes, p. 425.