Scottish Court of Session Decisions

Subject_1 ALIMENT.

Auchinleck
v.
Auchinleck

1751, July 10.
Case No. No. 13.

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This was a process at the instance of an apparent-heir on the act 1491, against his mother and both his grandmothers, for an aliment, which was first decided 21st February last, when we found no place for aliment. He reclaimed, and insisted chiefly against his father's mother, Winram, an old woman of about 90, whose liferent was about 1000 merks, for his mother had only a very small liferent, with the burden of a very numerous family, and the mother's mother had but about 600 merks. Some of the Lords thought it not founded on the act 1491, and that it was an extension of that act by our practice, and of this opinion were Justice-Clerk and Kilkerran, as was the President when with us. But as all our law books and decisions founded it on the act 1491, I and others were of the same opinion, and thought it was directly in the words of that act, as the life-rentrix's obligation to uphold houses, &c. which doubtless is founded on that act, as appears by the 15th act 1535. They also thought, that such a claim did not lie against the widow of the grandfather, but only against the widow of the father, and that the estate must be considered as at the grandfather's death; and if there was then sufficient for the aliment over the widow's liferent, that the mismanagement of that heir could not after his death give the next heir a claim of aliment against the grandmother; and in general it was said to be unjust after a Lady had been found in a liferent in the best way the law can secure her, that the mismanagement of the fiar should hurt her. But I and others thought, that we were to judge what is the law of Scotland, not what we thought ought to be the law; that the act speaks of all conjunct fiars and liferenters without distinction; and Balfour says expressly, “That when there are more liferenters than one, they must all contribute pro rata;” and therefore the estate cannot be considered as it was at the commencement of the first liferent. Craig and our other law writers are of the same opinion. The Court so found as early as 1525, which was but 34 years after the act; they so found in 1677; and though there is one decision on the other side in 1682, yet afterwards the Court decided according to the ancient practice, 27th November 1685, and others, quoted in the petition. 3tio, They thought the old woman could not spare any thing out of her liferent of 1000 merks yearly, though precedents were quoted of much smaller liferents contributing; but that was an arbitrary question, that could not have any influence on our law, and (as I thought,) chiefly on that consideration the Court adhered, renitentibus Leven et me, and Minto, who was in the chair. (See No. 90, p. 454.)