Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Somervells
v.
L Drum.

Date: 2 February 1711
Case No. No 60.

The Lords allowed younger children unprovided, an aliment from the heir; and they having no tutors, their relations, among whom they were distributed, were found adequate to receive the money and discharge the heir.

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The deceased James Somervell of Drum, having left five children, besides the heir, and none of them provided, in respect of his sudden death; and being all young, they pursue their elder brother, who succeeded to the estate, not indeed for portions, (for that our law has not yet allowed) but for an aliment till their majority; for, where an heir succeeds to a plentiful estate, the Lords have burdened him with alimenting his brethren and sisters ex obligatione juris naturalis, 24th January 1663, Edgars against their eldest Brother, No 54.; and 10th November 1671, Hasty No 53.; which continues till they be bred up in an employment; or, if mean people, to go to service; but cannot exceed the expiring of their minority.

The Lords having taken a summar cognition of the value of the estate, and burdens affecting it, they found it betwixt 4 and 5000 merks by year, with some debt; and therefore modified only 1500 merks of aliment yearly for all the five; but did not allow every one of them equally, but according to their ages, less till they came to ten or twelve years old, and then more; as they did in Jacobina Inglis's aliment against Sir John Inglis of Cramond, her brother.* But the difficulty arose who should uplift it, and give the heir a valid discharge. They represented, that for them to take out a gift of tutory from the Exchequer, would exhaust a great part of their aliment; neither would any be tutors, having nothing to manage but this small modification. Therefore, an expedient was offered, that the friends of the father's and mother's side had concerted amongst them, to divide the children, and each of them to take one into their family; and they were willing to discharge the heir on his paying their several proportions; and to give bond to apply it to their aliment and education, and to hold count for the same at their respective majorities; their design being to spare as much of their

* General List of Names.

aliment yearly, as, in process of time, may make up a little stock to them at their majority; which the Lords condescended to, upon their giving bond in manner foresaid, that their discharge should be a sufficient exoneration to the heir and his tutors. (See Tutor and Pupil.)

I remember, in the Parliament, held in 1672, an overture was brought in, that, for providing younger children, it should be lawful for parents to burden the heir, even on death-bed, with a sum not exceeding three years free rent of the heritage; but, by a vote, it was rejected and cast out.

Fol. Dic. v. 1. p. 33. Fount. v. 2. p. 633.