Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Mrs Magaret Seton, Relict of John Paterson, Younger of Eccles, and Elliot and Katharine Paterson of, her Daughters,
v.
Sir, John Paterson of Eccles

Date: 25 June 1761
Case No. No 67.

Aliment due to a mother, super jure naturæ; but sisters not entitled to an aliment, where the brother does not represent their father.

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John Paterson, younger of Eccles, married Mrs Margaret Seton, the pursuer, without the consent of his father Sir John.

During the son's life, Sir John allowed him an aliment, of 1200 merks a-year; but John the son having died in the 1742, Sir John withdrew the aliment altogether from the widow and seven children, whom his son had left behind. Some time thereafter, two of the sons having died, he took home the two remaining to his own family, and was prevailed on to settle a small annuity of 500 merks yearly, as an aliment for the widow, and Elliot, Katharine, and Margaret Patersons, her three daughters, to be restricted to 400 merks, in case of the death or marriage of any of the three young ladies: And in the event of the mother's marriage or death, he binds himself to pay to each of the three daughters, the sum of 100 merks yearly for their necessary support, &c. while unmarried.

Sir John Paterson, son to the pursuer Mrs Margaret Seton, upon the death of old Sir John, his grand-father, took his sister Margaret entirely off her mother's hand, and augmented the yearly annuity to L. 40 Sterling.

The Lady, and her two daughters Elliot and Katharine, brought an action against Sir John Paterson, concluding that he should be decerned to make payment to his mother of an yearly aliment of 2000 merks, and 500 merks to each of his two sisters.

Pleaded upon the part of the mother, That the action was founded super jure naturæ, and upon that renunciatory obligation, to recompence the pursuer for the support and entertainment of the defender in his infancy, which can neither be renounced nor cancelled.

Pleaded for the two sisters, That if old Sir John their grand-father had been alive, he would certainly have been liable to aliment them; and if that was so, so must their brother who represents him. If they had obtained bonds of provision, the grant whereof was not payable till their marriages; the Court, agreeable to many decisions, would have found them entitled to an aliment ; and as the obligation is rather stronger where daughters are not provided at all in a portion, the same principle of equity ought to be extended to their case ; 8th February 1739, Douglas, No 63. supra, the Court found the obligation to aliment sisters.

The defender, Sir John Paterson, did not seem to deny that a son was bound to aliment a mother who was altogether unprovided; but he pleaded, That the aliment which she already enjoyed, and which he offered to encrease, for behoof of herself and his sisters, to L. 50 Sterling, was sufficient to bar any further claim of aliment, super jure naturæ; because her claim had no other foundation, but the natural obligation of a child to aliment and maintain his parent, when destitute and unprovided; but the aliment she already enjoyed, with the addition offered, was sufficient to maintain herself and her two daughters decently, in a cheap part of the country.

With regard to the two young ladies' claim, the defender pleaded, That the law of this country had not extended the obligation to aliment ex pietate, to the case of brothers and sisters. Cases have indeed occurred, where younger children being left unprovided by their father, action has been sustained against the elder brother, who succeeded to the father's estate, for an aliment to his brothers and sisters. But, in these cases, the obligation was not founded in pietate, or upon the natural obligation upon one brother to aliment another, but upon the father's obligation, who was bound ex jure naturæ, to aliment his children, which the elder brother, as his representative, was bound to perform; but as the defender's father had no estate, the defender does not represent him, and therefore he cannot be liable in this claim of aliment to his sisters.

It was also argued, That the natural obligation upon parents to aliment their children, did not go beyond those of the first degree; was it to go farther, there would be no knowing where to stop.

The pursuer's progeny might multiply beyond number; and were they as many hundreds as they are now single persons, the claim would be the same. If Sir John the elder was bound to aliment his grand-children, he was equally bound to aliment their children; and so, from one generation to another, to the end of the chapter; and if the defender, as representing him, was under the like obligation, he, nor any man living, could know what a load he might be subjected to.

The Lords found, 'That the daughters were not entitled to an aliment, and therefore assoilzied the defender as to them; but found the mother entitled to an aliment super jure naturæ, and therefore ordained a condescendence of the defender's estate to be given in.

Act. D. Dalrymple. Alt. Lockhart. Clerk, Gibson. Fol. Dic v. 3. p. 23. Fac. Col. No 44. p. 96.