Younger children, whose provisions are payable at majority, must be alimented in the mean time.
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Henry Riddell died, leaving seven children under age, having executed a trust-settlement of his estate, providing each of his younger children to the extent of £3000, half of this sum not payable till after the death of the mother, and the other half to be paid “at the first term of Whitsunday or Martinmas after their respective arrivals at the years of majority, or their being married, whichever event shall first happen, with the due and ordinary interest of each provision, from and after the said term of payment, and thereafter during the not-payment, and a fifth part of penalty in case of failure; and I also appoint my said trustees, or their quorum aforesaid, or the survivor of them, to make payment to each of my sons and daughters above named, or to any other sons or daughters that may hereafter be born of my present marriage, of the like sum of £1500 Sterling, and that at the first term of Whitsunday or Martinmas after the death of the said Mrs. Ann Riddell, their mother, with interest thereof thereafter till payment, and a fifth part more of penalty in case of failure; and notwithstanding of the terms of payment of the said provisions, I hereby specially authorise my said trustees, or their quorum aforesaid, or the survivor of them, to advance or pay for all or any of my sons, such part of their said provisions as may be thought necessary for fitting them out in the world, and that to the extent of £1000 Sterling each; and in the event of the death of any of my said children before his or her majority or marriage, the share of them so dying shall accresce and belong to the survivors equally, and to the children of any of them who may have previously died, leaving issue, equally among such children, for the deceaser's part.”
The children claimed the interest of the £1500 from the time of their father's death,
Pleading: The clause to this effect seems to have been omitted through inadvertency only; for it never can be the intention of a man that his heir, who is eventually to succeed to a large fortune, should, till a certain event, be reduced to beggary, and be deprived of the advantages of an education suitable to the rank in society which he is destined to hold; and still less can it be presumed to have been the intention of a father, who had even provided for a payment of £1000 of the capital to fit his sons out in the world, so far to overlook their true interest, as not to maintain and educate his children till majority. Independent of the presumption of the will, that the elder brother who succeeded to the bulk of the fortune was understood to pay the interest of their provisions till they became due, the younger children have by law a claim against him for aliment, as the heir of their father. This action they now maintain; and they are authorised to do so by many decisions of the Court, in Dict. voce Aliment (dueex debito naturali.) In these cases, there was a capital sum belonging to the younger child, as there is in the present; and when an aliment was given, the principal sum or subject belonging to him was not encroached upon, by borrowing upon it, or in any other way; but the aliment was awarded to be paid by the representative of the father; and it has also been found, that in a question with the mother about alimenting the younger children, the heir is primarily liable ; Douglas against Douglas, 8th February 1739, No. 63. p. 425.
The heir
Answered: There is no obscurity in the provisions of the settlement; and accordingly, the pursuers rest upon a presumed omission; but such an assumption can never be legally made. The pursuers must either abide by the provisions of the settlement as they stand, or they must reduce it altogether, and confine themselves to what the division of the law would assign to them. Either of these modes stops the present action. Most of the cases referred to were where the younger children were totally unprovided for, while the heir had succeeded to an ample fortune, and the others are where the provision was at least very slender, which is not the case here. Besides, the testator has expressly declared the sum of £3000 to each child, to be in full of all claim against the estate.
The Court, looking upon this as entirely an omission on the part of the father, and that the children who were to succeed to an ample provision afterward, were not, in the mean time, to be deprived of the means of maintenance and education, held, that the trustees were bound to advance, in the mean time, out of the funds, what was necessary for the aliment of the younger children; but did not think it necessary in hoc statu to determine whether this was ultimately to come out of the fee of their own provisions, or out of the subject be longing to the heir.
Lord Cullen, Reporter.For the Children, A. Campbell.Agent, R. Boyd, W. S.For the Heir, M. Ross.Agent, Cha. Stewart, W. S.
Fac. Coll. No. 35. p. 71.
