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Scottish Court of Session Decisions >>
Hepburn v Seaton. [1635] Mor 381 (12 February 1635)
URL: http://www.bailii.org/scot/cases/ScotCS/1635/Mor0100381-001.html Cite as:
[1635] Mor 381
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.
Hepburn v. Seaton
Date: 12 February 1635 Case No. No 1.
The heir has a claim to aliment in his own right, without service.
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James Hepburn, brother and apparent heir to umquhile John Hepburn, his elder brother, pursues Dame Margaret Preston, relict of umquhile Sir Robert Hepburn of Alderston, their father, she being their mother, and Isobel Seaton, relict of the said brother, who were liferenters of the whole estate, whereto he was to succeed, for a modification to him, during their lifetimes; and the said Isobel Seaton alleging, That this action should abide continuation, and also, that the act of Parliament, which was the ground of this action, ordained modifications to be granted to the heirs of the defunct; so that this pursuer being only apparent heir, and neither being infeft as heir, nor retoured heir, he could have no action upon the act of Parliament, which ought to be respected, seeing the defender has action due to her against the heir of her husband, which she cannot move against the pursuer, before he be entered heir.——The Lords repelled the allegeance, seeing the action was alimentary, and so needed no continuation; and also the apparent heir ought to have modification, that he might have means whereby to live, and that the act of Parliament did militate for the apparent heir; likeas the pursuit, after sentence, would furnish action against the defender, as behaving himself as apparent heir to the defunct; and if she pleased also, she might charge him to enter heir, and if he refused, then she had reason to dispute, why she might be freed of this modification, or make other advantage thereby.
Act. Nairn.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 28. Durie, p. 755.
