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.
Auchinleck of Woodcockdale v. Janet Winram
Date: 10 July 1751 Case No. No 31.
No aliment found due to an heir, where the provisions due by the proprietor's contract of marriage to younger children, exceeded the value of the estate.
Click here to view a pdf copy of this documet : PDF Copy
James Auchinleck of Woodcockdale, left at his death, 1735, James, a son, and several other children; and his estate burdened with the liferent of the lands of Woodcockdale, of 800 or 900 merks yearly rent, and a house in Edinburgh of 300 merks rent, to Janet Winram his mother; an annuity of 1300 merks to Elizabeth Turnbull, his relict; and the liferent of the lands of Balglaffie, of 800 merks, to Katharine Garden, relict of George Turnbull of Balglaffie, his mother-in-law: With these burdens, and the interest of his debts, without reckoning children's provision, the estate was more than exhausted.
James Auchinleck of Woodcockdale, the heir, pursued the three liferenters for an aliment; in which the defence was chiefly made for Janet Winram; and for her it was pleaded, That being a woman now above ninety years of age, she was not obliged to aliment the heir out of what was no more than sufficient for her own aliment.
2do, The estate, when her liferent was laid upon it, afforded, besides, a competency to the proprietor: And as it is since reduced by the contractions, not of the granter of her liferent, but a subsequent heir, these contractions cannot bring a burden upon her, to which she Was not originally subject.
3tio, There is no estate to which the pursuer can succeed; his father being bound, by his contract of marriage, to pay 54,000 merks to the children of the marriage, according to a division thereby settled, and not to leave him the estate, which is not of the value of this sum.
Pleaded for the pursuer: He is an heir in the estate of Woodcockdale; and is entitled to an aliment from the liferenter thereof. By considering the civil and feudal law, it appears there is a foundation for this obligation, older than the statute 1491; by analogy from which it is generally supposed to have been introduced. Justinian statutes, that when an universal liferent is left to the relict, the children shall be entitled to a third of the effects for aliment, 18. Novel, c. 3. Craig, 1. 2. D. 17. § 20. says on this constitution, “Providendum filiis putat neegeant; quod ad heredem feudi traductum est; ut semper aliqua ejus cura habeatur ne egeat; ita tamen detrahendum, vel ex custodia, vel ususructu uxoris, si heres non habeat aliunde quo alatur;” and cites a decision in the case of the Laird of Swinton. It is the same thing whether the estate is subject to an universal liferent, or if that part of it which is not subject is exhausted by debts; Hope, de heredibus; Stair B. 2. tit. 6. § 5.; Mackenzie, title Servitudes, § 45. Institute of the Law, p. 157. And when a defence has been offered, that the heir had succeeded to a separate estate, it has been sustained in reply, that it was exhausted by debts; 13th February 1662, Birnie against the Liferenters of Rossie, No 14. supra;—25th July 1705, Ayton against Colvill, No 12. supra: As also, whether the debts were contracted after confutation of the liferent, or by a subsequent heir, as different liferenters, whose rights have been constitute at different times, are liable proportionally; Birnie's case above-cited; Balfour, word, Heirship Goods, the case of the Earl of Huntly cited by him, 13th May 1525, infra h. t.—12th December 1677, Preston against the Liferenters of Airdrie, No 21. infra—27th November 1685, Heir of Kirkland against his Grandmother, No 32. infra.—20th February 1697, Seton against Turnbull, No 33. infra.—18th January 1712, Lyon of Brigtoun against Liferenters, No 3. supra—12th July 1715, Cunningham against Ramsay, No 34. infra.
For the defender: All the decisions found the obligation to aliment the heir upon the construction of the act of Parliament 1491; and this construction has been at first ill made; for the act, in the first clause, subjects wardatars and liferenters to find security for preserving the subject; but, in the second, where the wardatar is made liable to aliment the heir, the liferenter is not mentioned; and there was reason for the difference; both were obliged to preserve the subject by the nature of their right; but the wardatar was obliged to aliment by our old law, Reg. Maj. 1. 2. c. 42. § 5. The novel cited from the civil law only statutes, That by an universal liferent, children should not be deprived of their legitim: The practice has been to give aliment, when the liferent exhausted the estate, not when the remaining estate was afterwards incumbered; and though this was found in the case of Preston of Airdrie, (above-mentioned) the contrary was determined, 7th January 1682, Hamilton against Hamilton, No 8. supra. In the case of Kirkland the defence was not pleaded, but the liferenter offered to aliment in family.
Observed, The construction made of the act of Parliament was right; for thereby the wadsetter or liferenter is obliged to take his reasonable sustentation, without destruction or wasting of the subject; and then the act proceeds in these terms:
“And a reasonable living to be given to the sustentation of the air after the quantity of the heritage, gif the said air has na blanch-farm nor feu-farm to sustain him on.”
Here neither wardatar nor liferenter are mentioned; but the statute having made both liable in the former prestation of preserving the subject, goes on, in a continued stile, to enact the heir shall be alimented, without saying by whom, necessarily intending the persons formerly expressed.
The Lords, 21 st February, ‘Found no place for an aliment in this case.’ And, on bill and answers, ‘adhered.’
Act. Brown.Alt. A. Macdowal.
Fol. Dic. v. 3. p. 21. D. Falconer, v. 2. No 220. p. 264.
