Scottish Court of Session Decisions

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.

John Lyon of Brigtoun, and his Curators,
v.
Elizabeth Gray Lady Carse, and Cicilia Denmure Lady Allantoun

Date: 16 January 1712
Case No. No 3.

Heir renouncing found not entitled to aliment.

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John Lyon of Brigtoun, apparent heir-male to Patrick Lyon of Brigtoun, his grand-uncle, (who came to possession of the estate as a creditor by singular titles, transmitted to him by his grand-father,) finding the same exhausted by debts and two liferents, viz. One to Elizabeth Gray Lady Carse, his grand-uncle's relict and another to Cicilia Denmure his mother, pursued an aliment against these liferenters.

Alleged for the Lady Carse: Absolvitor, because the pursuer doth not possess the estate as heir to his grand-uncle, her husband, but as heir to his grand-father, who did not only renounce to be heir to his brother the grand-uncle, but acquired singular titles and possessed tanquam quilibet. For aliment provided by law must go to the heirs of law, and not to heirs of tailzie or provision; and far less to the pursuer, who is only heir to a creditor, and not heir of the family or blood; seeing his accidental title of apparent heir-male is cut off by upwards of forty years possession of the estate by singular titles, as feudum novum or conquest.

Replied for the pursuer: His grand-father having been undoubted apparent heir-male to the defender's husband, the necessity he was under to succeed by apprisings and adjudications for fear of debt, should not wrong the pursuer's natural claim of an aliment; which, though commonly ascribed to the act of Parliament, appointing wardaters to aliment their wards, seems rather to have arisen from the civility of our law, that judged it hard for liferenters to cut off, as it were by starving, the heir from any hope of succession. Upon which ground it may be gathered from the strain of our practicks, that a fiar having the right of blood, debarred by liferents, ought to be alimented by the liferenters, whether he came to the succession by service or singular titles; albeit the heir of a stranger purchaser could have no recourse to an aliment off a liferenter, whose right affected the purchase. Yea, the interest of blood entitled an apparent heir to aliment, even against his grand-father's second wife, to whom he had no blood-relation, 12th December 1677, Preston of Ardrie contra his Liferenters, No 21. infra.

Duplied: It being absurd to pretend, That the pursuer can both enjoy the estate as a creditor, and claim benefit as heir to the person whom his diligence and singular titles divested. Aliment can no more be decerned upon that account, than it could be decerned at the instance of the heir of a ward-vassal against the supeperior, when the ward-lands are possessed by an appriser. The case of Ardrie is a single decision; besides it doth not appear, that there the estate was enjoyed by singular titles.

The Lords found the defence for the Lady Carle relevant, That the pursuer possesseth not as heir to her husband, but as a creditor by singular titles.

Fol. Dic. v. 1. p. 28. Forbes, p. 575. *** The same case is thus reported in Fountainhall.

Dame Elizabeth Gray was first married to Lyon of Brigtoun, and then to Sir Patrick Lyon, Lord Carse; and by her first husband had a jointure of L. 100 Sterling; and having only two daughters, they got portions, and the estate fell into her husband's brother, as the heir-male. John Lyon now of Brigtoun, his grand child, finding his estate exhausted by two liferents, the said Lady Carse his grand-uncle's relict, and also by his mother's jointure, besides other debts affecting it, he pursues a process of aliment against them both. The mother contended she could bear little or none of it, she having only 1000 merks; whereas the Lady Carse had now possessed near these forty years bygone almost the double. It was alleged for the old Lady, absolvitor from any modification on her; 1 mo, Because she brought an opulent tocher of L. 1000 Sterling to the family, by which they were lucrati, for which she got but a very moderate retribution of a jointure; so she being an onerous creditor on the estate, can never be burdened.—Answered, The bringing a portion does not change the matter, nor take away the heir's claim; for women have right to a jointure, either legal or conventional, whether they bring tocher with them or not: And the action for aliment of apparent heirs is founded in that natural decency, requiring that estates be not carried away by liferenters, to the starving of the heir, who has no access till their death; and which is confirmed and supported by the 25th act 1491, where the superior, or his donatar, are to aliment the ward-vassal during his minority.—2 do, Alleged, That Brigtoun has no right to seek an aliment from her, because his grand-father was not heir to her husband, who left two daughters, his heirs of line; and he entered not as heir-male; but finding the estate burdened, he renounced to be heir, and suffered it to be adjudged, and then brought in these adjudications; and by that singular title they possess the land to this day; so bruiking tanquam quilibet and as a creditor or stanger, he has no claim for an aliment against her; especially seeing he has no contingency of blood with her, neither being descended of her body nor her husband's; so that a creditor-adjudger might as well crave an aliment from her as he.—Answered, Her daughters' exorbitant provisions did so incumber the estate, that he was forced to enter by singular titles, and possess as an adjudger; but he being still the heir of blood, though not descended of her body, his renouncing to be heir can never deprive him of his just claim, which he has both jure sanguinis, (his grand-father being her husband's brother) and likewise by the feudal contract, which gives him a relation to the fee, and an interest to be alimented out of it; as was found 12th December 1677, Preston contra the Liferenters of Airdrie, No 21. infra; See also 21st July 1636, Heriot of Ramornay contra Law, No 10. infra; 11th Feb. 1636, Wallace and Sibbald, No 9. infra; and 16th July 1667, Hamilton contra Symington, No 2. supra.—Replied for the Lady Carse, That having renounced, he is in no construction an heir, except of one who enters as a creditor-adjudger. It is true, these aliments were a stretch and extension of James IV's act, and were more actus imperii than jurisdictionis, but were never extended to a creditor's heir: And the case of Hepburn contra Seaton, 12th February 1635, No 1. supra, (and a hard decision it was) sustained the aliment; but there was no renunciation there. And Sir George M'Kenzie, in his observations on that act of Parliament, reasons against these extensions with great freedom and evidence; nor have the decisions been uniform on which the authority rerum judicatarum stands; but this is the fate of all decisions which arise from no certain principles of law; and, as to such, all occasions are to be taken to restore them back to the true principles of justice and equity.—3 to, Alleged, At her husband's death, the fortune was in a tolerably free condition, and the burdens being supervenient, they cannot prejudge her liferent, or draw an aliment on her, especially he having his mother to recur to, who is bound jure naturæ to maintain him; and was so found in President's Falconer's Decisions, 7th February 1682, Hamilton, No 8. infra.—Answered, That is but a single practick; but the current has been, that the liferenters, both old and new, take the burden proportionally effeiring to their quotas; for quem sequitur commodum eundem sequi debet etiam incommodum; and the mother, out of her small aliment, has hitherto maintained him.——The Lords found the Lady Carse not liable in any part of his aliment, especially he bruiking by special singular titles, and having renounced to be heir.

Fount v. 2. p. 707.