Scottish Court of Session Decisions

Subject_1 IDIOTRY and FURIOSITY.

Margaret Bonnar, brother daughter to Mr John Bonnar of Greigstoun,
v.
The said Mr John Bonnar, and James Maxwell of Leckiebank his tutor-dative

Date: 15 June 1709
Case No. No 8.

Aliment refused to an indigent fatherless infant, out of the estate of her uncle, to whom she was presumptive heir of line, although he was past 60 years of age, unmarried, and under the care of a tutor dative, as a person non compos mentis, and so in effect a liferenter only, through his incapacity to exercise any act of property; in respect there was no law or precedent for modifying aliment in such a case.

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Mr John Bonnar of Greigstoun being past 60 years of age, unmarried, and several years ago found by an inquest to be fatuous or not compos mentis, and therefore put under the care of a tutor-dative, Margaret Bonnar, an indigent fatherless infant, his apparent heir of line, pursued him and his tutor for an aliment.

Answered for the defender; That no aliment was due to the pursuer, there being no precedent for it in our law or custom.

Replied for the pursuer; The Lords are in use to decide matters of aliment upon the principles of equity, and the law of nature; and, therefore, obliged an eldest brother, succeeding to his father in a competent estate, to aliment his younger brethren and sisters during their minority, Children of Netherlie against his Heir, No 50. p. 415.; June 29. 1676, Row contra Row, voce Prescription; and heirs-male to aliment the heirs of line, Lady Otter contra The Laird of Otter, No 49. p. 414.; November 12. 1664, The Daughters of Balmerino against The Heirs-male, (Appendix) voce Annualrent; albeit no statute or municipal law could be urged in either of these cases. Again, liferenters are bound to aliment apparent heirs; consequently nothing is more agreeable to law or equity, than that an aliment should be modified to the pursuer out of her uncle's estate, who is upon the matter a liferenter, through his incapacity to exercise any act of property, she being his apparent or presumptive heir, and there being found sufficient to aliment both.

Duplied for the defender; Non sequitur, that because law appoints liferenters to aliment the fiars, proprietors should aliment their presumptive successors; for this were in effect to destroy property, and make apparent heirs partial proprietors. And seeing fatuity or furiosity divests no man of his property, Mr John Bonnar cannot be subjected, by his fatuity, to a burden he would not otherwise have been obnoxious to; on the contrary, it is the design of law to protect, and not to destroy, the rights and interests of those who are incapable to look to themselves, by appointing them tutors. The practiques cited are not to the purpose; for the obligation on the eldest son, as representing his father, to aliment his indigent brethren and sisters, to which the father was liable jure naturæ, is not extended beyond a suitable aliment during their state of incapacity to provide for themselves; and, therefore, as the pursuer's father, being arrived to manhood, could not, were he alive, have pretended to aliment from his brother, neither can his daughter pretend to an aliment from her uncle, there being no natural tie, upon any collateral relation, to aliment or provide for another, though in the nearest degree. Nor is the obligement upon the heir-male to aliment the heir of line, which ariseth from the same topic, of his representing the father, who was bound to do it, to be drawn in consequence, to fix a tie upon an uncle to maintain his neice out of his own property.

The Lords refused to modify an aliment to the pursuer, in respect there was no law or precedent for it. See p. 6288.

Forbes, p. 332.

*** The following case is connected with the above.