Scottish Court of Session Decisions

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.

George Stewart
v.
Mrs Charlotte Campbell

Date: 24 June 1780
Case No. No 27.

Aliment not exigible by an heir of entail, from an annuitant on the estate.

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James Stewart of Stewarthall, executed an entail of his estate with the usual clauses, and likewise under this condition; “That the heirs of entail should be obliged to apply L. 100 yearly of the rents towards the extinction of the debts with which the estate was affected.”

He afterwards married Mrs Charlotte Campbell; and, in virtue of a power reserved in the entail, he settled on her a jointure of L. 130 per annum.

George Stewart, though a very distant relation, succeeded as first heir of entail; when he found the situation of the estate such, that, after payment of the jointure, the rents of the lands, which amounted to L. 246, fell considerably short of the other annual burdens. He had no separate funds; nor did he practise any calling to earn his subsistence; for, though he had been bred a sailor, and was still a young man, he had withdrawn himself from that way of life.

He therefore claimed an aliment from the widow, as liferentrix of so large a part of the produce of the estate; and having raised an action on that ground, is was

Pleaded for the defender: The defender is, by her marriage-contract, an onerous creditor on the estate, and is not bound to aliment the pursuer, her debtor.Nor can he claim an aliment from her as liferentrix; for in fact she is not such, being a creditor on the estate for the annuity payable by that contract. At any rate, there is reason to doubt if such a claim, made by fiars, ever had any proper foundation in the law of Scotland; but certainly it cannot be supported, when coming from a healthy young man, able, like the pursuer, to earn his livelihood by his labour; Erikine, p. 333.

Answered: It is now an undoubted rule, that liferenters are bound to aliment such fiars as are otherwise destitute of any fund of subsistence. It was established, in the case of wardholdings, by act of Parliament 1491, cap. 25. and has been, by practice, extended to that of every kind of holding; as it is evident from Dictionary, voce Aliment; whence it likewise appears, that this claim has never been denied, except either where the heir possessed separate means of subsistence, that, in the present case, are far from occurring, or where the scanty circumstances of the liferenter did not admit it; which surely cannot be said of the defender, who has obtained L. 130 of jointure for her tocher of L. 500.

The Court distinguished the case of an annuitant from that of a liferenter; a distinction established in the case of Mirrie contra Pollock, July 1731, Remark. Decif. No 25. supra.

‘The Lords therefore sustained the defences.’

Act. Dav. Rae. Alt. Ilay Campbell. Clerk, Tait. Fol. Dic. v. 3. p. 22. Fac. Col. No 112. p. 209.