Subject_1 ALIMENT. Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs. Subject_3 Benefit of discussion.
As to the benefit of discussion among those bound to aliment - by the case Preston against Liferenters of Airdrie, No 21. supra, it was found, that two liferenters upon an estate, viz. The mother and grand-mother, were liable to aliment the heir, pro rato, out of their liferents. - The following case regard the same subject of discussion. ###Justis###
Cunningham of Brownhill, v. Dame Margaret Ramsay, his Grand-Step-Motber
Date: 12 July 1715 Case No. No 34.
Not sustained as a defence for the grandmother, that she had voluntarily sold a part of a separate estate to pay the debts of the pursuer's grand-father.
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The said William Cunningham, a pupil, having raised a process of aliment against his mother and step-grand mother, upon the act of Parliament 1491, cap. 25. whereby superiors of ward-lands are obliged to aliment the heirs; which by established practice, paritate rationis, is extended to liferenters: Among other defence for the step-grand-mother, this was proponed, That when the married she pursuer's grand-father, she was provided in an liferent of 3000 merks, out of a former husband's estate, the half whereof she allowed; to be sold, and applied for payment of Brownhill, her husband's debts; and therefore had scarce enough to herself, having also several children and grand-children of her own; whereas, in all modifications of aliment, the Lords do always consider the quantity of the liferent, the quality and circumstances of the liferentrix, &c.
Answered for the pursuer, That whatever tocher or provision she brought, makes no difference here; because, still the heir, at least under pupilarity, must be alimented, which is provisio legis, and by no paction can be evacuated: And as the law did openly intimate to her this act, as a burden which she was in hazard to undergo, she ought to have provided for his liferent suitably; for the rule is, that whatever portion of burden each liferenter have from the fiar's estate, and whatever the portions were that they brought, yet that since he finds them liferenters, they must contribute to his maintenance.
The Lords found the defence not relevant to assoilzie the step-grand-mother from contributing a proportion of the pursuer's aliment.
Act. BoswellAlt. Sir Thomas Wallace.Clerk, Robertson.
Fol. Dic. v. 1. p. 31. Bruce, No 115. p. 143.
