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Scottish Court of Session Decisions >>
Macneil v Macneil of Taynish, his elder Brother. [1749] Mor 426 (14 June 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor0100426-064.html Cite as:
[1749] Mor 426
Subject_1 ALIMENT. Subject_2 ALIMENT due ex debito naturali.
Macneil v. Macneil of Taynish, his elder Brother
Date: 14 June 1749 Case No. No 64.
Import of an obligation to aliment and educate, till the child's portion bears annualrent. - Can the claim exceed the annualrent?
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The deceased Macneil of Taynish, a man of a considerable fortune, having settled moderate portions on his children, payable at a certain age, bound himself and his heirs, in the mean time, to aliment and educate them according to their rank.
In the action, at the instance of Archibald the second son, yet under age, against his elder brother, for a certain sum to be paid towards his aliment and education, over and above the annualrent of his portion, it was, for the defender pleaded, That such obligations to aliment and educate till the age at which annualrent on the portion becomes due, are designed for the ease of the heir; but are never understood as intended to go beyond the annualrent which had been regularly paid to the pursuer's mother, towards his aliment and education, and whereof the defender was willing to continue the payment.
The pursuer answered, That the annualrent of the portion is by no means the measure of the obligation. On the contrary, the obligation to aliment and educate, is put in place of the annualrent, as what is understood to require more than the annualrent can afford. And certain circumstances were condescended on to show such to have been the intention of it, in this case, with respect to the pursuer; particularly that his deceased father had, some months before his death, sent him to Dublin for his education, at the University, with a governor attending him; an education which could not be defrayed by the double of the annualrent of his portion, which was no more than his share of the sum of L. 800, as one of four children.
Upon this debate, it appeared to be the opinion of the Court, that the obligation to aliment and educate would receive a different construction, according to the circumstances of the estate left to the heir, and extent of the portion; so that in some cases, the claim for education might exceed the annualrent of the portion; and in others not even extend to so much: And, in this case, the Lords would, in respect of the above circumstance, have given a further sum, but for a new fact advanced by the defender at advising, and which the doers for the pursuer could not refuse, That the pursuer had a separate estate of his own, left him by a friend; which the Lords ‘found to be a good defence, and assoilzied the defender.’
Fol. Dic. v. 3. p. 24. Kilkerran, (Aliment.) p. 23.
