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Isobel Moncrieff and her Husband v Catharine Monypenny, Lady Sauchope. [1712] Mor 5915 (20 June 1712)
URL: http://www.bailii.org/scot/cases/ScotCS/1712/Mor1405915-119.html Cite as:
[1712] Mor 5915
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. V.
Relict's Aliment till the term after her Husband's Death.
Isobel Moncrieff and her Husband v. Catharine Monypenny, Lady Sauchope
Date: 20 June 1712 Case No. No 119.
A relict provided to an annuity to be. uplifted betwixt Yule and Candlemas after her husband's death, was allowed a sum for her aliment from her husband's death till the commencement of the annuity.
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George Moncrieff of Sauchope, in his contract of marriage with Catharine Monypenny, obliged himself to infeft her in a liferent yearly annuity of eight chalders of victual, to be uplifted betwixt Yule and Candlemas furth of his lands, beginning the first year's payment, betwixt the first feast of Yule and Candlemas after his decease. George Moncrieff having died November 19th 1707, Catharine Monypenny, his relict, craved an aliment to be modified to her, from the 19th November, till Candlemas thereafter.
Alleged for Isobel Moncrieff, the husband's executrix, No aliment can be allowed, because, aliment to a relict till the next term after her husband's decease, is indulged only when she hath neither immediate access to her jointure, nor a fund of credit, that she may not be left to live upon the air; as when her liferent is provided by way of annualrent, in which case, if she happen to die betwixt terms, or before the first term of payment of her jointure, she gets nothing at all; and seeing that may fall out, no person will credit her in prospect of her jointure; which reason for an interim aliment ceaseth in this case, where the relict's security, in a liferent annuity out of certain lands, afforded her a fund of credit immediately after her husband's decease; seeing, whether she survive Whitsunday or Martinmas or not, she has still right to less or more of her jointure. This distinction seems to be established by a solemn decision in terminis, Couper contra L. Tofts, No 117. p. 5908.
Answered for the Relict. There is no solid difference betwixt a liferent provision of annualrent, and a liferent provision out of lands, where the provision doth not commence till the first term after the husband's death. For here lies a necessity of an alimentary provision medio tempore. Whether the liferent be due the next term after the husband's decease or not, by the relict's living till then, or dying before; or whether she have a Fund of credit or not, aliment is due to her by a general rule, and not in particular cases only. So that she is entitled to an interim aliment by a general rule, whereby a relict, having a jointure by a former husband, or being proprietor of lands as an heiress, hath right to such an aliment; which proceeds rather upon the motive of natural obligation, than that of mere necessity. As to the objected practick, it makes for the relict, since there aliment was decerned not to be allowed in the next term's rent.
The Lords modified a sum to the relict for her aliment from her husband's death, till the commencement of her jointure.
