Mrs Margaret Lauder v. Sir David Baird of Saughtonhall
Date: 31 January 1744 Case No. No. 19.
An heir of retail not liable for mournings, of an interim aliment to the widow of a preceding heir, unless anthorised by the entail.
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The estate of Saughtonhall descended to Sir Robert Baird by a tailzie, under irritant and resolutive clauses, but with power to the heirs of tailzie to give liferent provisions, by way of locality, to their wives, the same not exceeding a third part of the said lands.
Sir Robert intermarried for a second time with Dame Helen Hope, to whom he gave a life-rent infeftment, by way of locality, not exceeding a third.
Sir Robert died in September 1740, and his wife in the April thereafter; whereupon her representatives brought an action against Sir David Baird, as heir to Sir Robert, (his father) for payment of £.20 as aliment to the said Dame Helen Hope, till the term of Martinmas 1740, when her life-rent provision commenced; and likewise for £.48 for mournings she had taken off for her husband; founding their plea on this, that a widow had a right to be alimented to the next term when her life-rent commences, whether the provision in her favours be a legal or conventional one. That mournings were also of the nature of an alimentary provision, where the rank and quality of the widow rendered them necessary: That both were a debt of the husband's: And, in this case, it seemed to be a consequence of the tailzie, that the widow should have both; since it is plain, with respect to the aliment, that the intention of the entailer was, that the widows should be supported suitable to their rank and quality, consequently she behoved to have an interim aliment, until her jointure took place, otherwise she might have starved; and in the same manner it could never enter into the minds of the merchants who furnished the mournings to the widow, that a woman of her rank was not entitled to have them, or that the same would not affect the heir. Tailzies are indeed to be strictly interpreted, where they lay a restraint on the heir; but where powers are given, dispensing with the restraints for necessary and honourable occasions of the family, these powers ought to be amply and largely interpreted. Now, the clear and evident design of giving the heir a power to provide a wife, is, That she may be supported suitably to the dignity of the family; and it was impossible this intention could be answered, unless she had an interim aliment, and mournings for her husband, the representative of the family; therefore the tailzie can afford no defence in this case.
Answered: That, supposing mournings and aliment to the next term, are considered as a debt of the defunct's, yet it will not affect the defender as heir of entail, unless the pursuer will show, that it is warranted and authorised by the entail: Now it is impossible to plead, that the power of granting localities necessarily comprehended under it mournings and aliment. It is true, that in the ordinary case, where the husband is absolute proprietor, and grants a life-rent locality to the wife, she has a claim for an interim aliment till the same become payable; but this does not arise from the nature of a life-rent locality; it arises from the natural obligation upon the husband to aliment his wife; and, as to the argument drawn from the tailzier's intention, the presumption lies quite the other way; as, from the conception of the clause, the power of the heir in possession is declared not to, operate so as to burden the estate, or succeeding heir, with any thing to the wife; for as her provision is to be by way of locality, so it is anxiously provided, that whatever rents of the localled lands might be resting to the wife, the same should not affect the estate after the locality is at an end. And although the wife's claim for aliment and mournings, may be called a debitum humanitatis, yet such debt cannot compete with other lawful creditors; and it would look odd, that a debt which is postponed to all others, should yet affect an heir of entail, who is not liable for the most onerous contract of the preceding heir.
The Lords found, That Sir David Baird is not in this case liable, as heir of tailzie to his father, either for mournings, or aliment to his widow.
