Isabella Clerk, and her Tutor ad litem, v. Sir George Clerk, and his Tutor-at-law
Date: 19 February 1799 Case No. No. 2.
A sister found in strict law to have no claim for aliment against her eldest brother, although in possession of the family estate, where he did not represent his father, and represented his grandfather only as an heir of entail.
Click here to view a pdf copy of this documet : PDF Copy
Sir George and Isabella Clerks were children of the late James Clerk, who predeceased his brother, Sir John Clerk of Pennycuick. On Sir John's death, Sir George succeeded to the estate, worth upwards of £2000 yearly. Sir George did not represent his father at all, and he represented his grandfather only as heir of entail; but he represented universally his great-grandfather, who held the estate of Pennycuick in fee-simple.
Miss Clerk being wholly unprovided for, and Sir George's tutor-at-law not thinking himself entitled to afford her a suitable maintenance from his ward's estate, without the authority of the Court, an amicable suit Was brought, concluding for an aliment of £60 yearly.
In defence, Sir John and his tutor
Pleaded: The pursuer's claim must rest on the defender's being bound to aliment her either ex debito naturali, or as representing some predecessor who, had he been alive, would have been under that obligation. But, whatever moral tie there may be on a brother to support his sister, the legal one extends only to her immediate parents; 16th January 1756, Malcolm against Malcolm, No. 72. p. 439. And as little can the pursuer be subjected as representing his predecessors, because the claim for aliment on that ground at the instance of a sister, lies against her brother only as representing their father, and does not extend against a brother, who represents only his grandfather; 25th June 1761, Seton and Patersons against Paterson, No. 67. p. 429.
Answered: The Court have enforced the moral obligation to afford aliment in cases of a very similar nature; 15th December 1786, Lowther, No. 71. p. 435. Besides, the eldest son possessing the family estate, has been found liable in aliment to his sister, where he represented their common grandfather; 11th February 1764, Younger Children of Seton against the Heir, No. 68. p. 431; 14th December 1788, Dalziel against Dalziel, No. 84. p. 450; and there is no good reason why the representing a great-grandfather should not have the same effect. It may be said, that by ascending to remote ancestors, the obligation to aliment might be extended in favour of distant relations; but, in all cases, the Court will pay regard to the relative situation of the parties, and will sustain the claim, on the footing of the defender's representing a common parent, when it is made at the instance of a sister, although they would repel it if made by a cousin.
The Court ordered memorials; on advising which, several of the Judges were for supporting the claim. The rest so far agreed with them, as to be clearly of opinion, that every disbursement made by the defender's tutor in the maintenance and education of Miss Clerk in a style suitable to her rank, would be sustained in accounting with his pupil; but they thought that there was no ground in law which entitled them to award the pursuer a specific aliment.
The Lords accordingly found, “That, in the circumstances of this case, the pursues has no such claim of aliment against her brother, as can be enforced in a court of law; and therefore assoilzied from the present action, and decerned; without prejudice to any discretionary power which the tutor may be advised in such a case to exercise; and reserving all questions of accounting between him and his pupil, when the term of his office expires.”
Act. Ro. Craigie.Alt. H. Erskine.Clerk, Sinclair.
Fac. Coll. No. 112. p. 255.
