Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Helen, Archibald, &c Douglasses, v. Sir John Douglass of Killhead
Date: 8 February 1739 Case No. No 63.
The brother, in a question with his mother, found primarily liable for the aliment of the younger children; the males till majority, the females till marriage.
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Sir William Douglass having died without making any provision in favours of his younger children, they intented an action against Sir John, their elder brother, for aliment, upon this ground, That he possessed an opulent fortune, (about 500l. a-year,) descended to him from their common father. In support of this, it was observed for the pursuers, That the defender, as heir to his father in such an estate, is obliged to aliment them, in like manner as the father was, conform to 24th of January 1663, Netherlie, No 50. supra—8th of January 1663, Lady Otter, No 49. supra, which proceeded on this principle, That the obligation to aliment, which lay on the defunct, does descend against his heirs, and is competent to majors as well as minors, as the Court always found; particularly, 25th July 1705, Aiton, No 12; when it appeared such were not in a condition to aliment themselves, which is the case of all the pursuers in this process; and therefore action ought to be sustained for aliment bygone, since the father's decease, and in time-coming, until they should be able to provide for themselves. Neither can it afford any objection, that the pursuers have been maintained part of the time since their father's decease by their friends, as the favour was not intended to be done to the defender; consequently the benefit thereof ought not to accresce to him.
Pleaded for the defender: He did not controvert, but brothers, succeeding to the estate of a common father, are by law bound to aliment their younger brothers and sisters; but then that obligation lasts only till majority. A father is bound not only to aliment his children, but to educate them to some calling, in order to put them in the way of maintaining themselves: If he does not do this, he will be bound for aliment, even after majority, because of his neglect; but a brother is under no such obligation; he is not bound to put his brothers and sisters to apprenticeships, or to give portions to his sisters; and therefore, if, after majority, they are not infirm, their elder brother may be called cruel, if be leaves them to starve, but there is no law to compel him to aliment them further. 2do, Admitting he is liable for the pursuers aliment till majority, unless he has no other defence, he further says, That persons liable in aliments, are to be taken in a certain order; first, the father, super jure naturæ; and, if he is indigent, the mother is bound to maintain the children, if she be in a condition; which arises likewise from the law of nature; and, by the civil law, grandfathers and grandmothers; beyond this, aliments are not due super jure naturæ: A brother is bound in conscience to maintain his brothers; to which duty the law has added a positive command; but the obligation does not arise from the same source, because a brother has no hand in bringing his brother into the world; it arises singly from filial duty, by which a son, in reverence to his parents, ought not to suffer their children to starve; a brother then being pursued in a process like this, has a sort of beneficium ordinis, if not discussionis, that, if he can point out one liable in aliment by the law of nature, and able, he can only be liable in suo ordine: Now, Lady Douglass, their mother, is able, she having 2000 merks per annum of jointure off the defender, and L. 150 yearly more in property.
The Lords found the defender, Sir John Douglass, having succeeded to his father in a considerable estate, is primarily liable to aliment his younger brothers and sisters unprovided; and found the males have no claim to be alimented by their brother after majority; but that the females are entitled to be alimented till marriage; and found, That, in so far as they have been alimented by their friends, they have no claim against their brother.
Fol. Dic. v. 3. p. 23. C. Home, No 114. p. 183.*** The same case is thus reported by Lord Kilkerran:
It was found, that the eldest son, succeeding to his father in a land-estate, was, in a question with the mother, primarily liable to aliment his younger brothers and sisters unprovided; the brothers till their majority, and the sisters till their marriage; unanimously as to the endurance of the aliment of the brothers; but by a small majority as to the endurance of the aliment of the sisters.
N. B. The obligation upon the eldest son succeeding to his father in an estate sufficient to afford aliment to the younger children, is a legal obligation, which, therefore, must take place before that which arises only ex jure naturæ upon the mother; and therefore he was found primarily liable in a question with the mother. But had not the estate of the eldest son been sufficient to afford a suitable aliment, the mother would have been found liable ex jure naturæ.
