Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Maxwell
v.
Maxwell

Date: 23 February 1711
Case No. No 61.

During the dependence of a reduction of a father's testament, betwixt a sister pursuer, and a brother defender, she, being married, found entitled to no interim aliment.

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The deceased Sir William Maxwell of Monreith, by his testament, nominates Sir Alexander his son, to be his only executor and universal legatar, with the burden of 5000 merks to his daughter Elisabeth, and some other small legacies. But Sir Alexander finding his father's moveable debts exceed the inventory of the testament, he pursues an exoneration before the Commissaries to prove exhausted. In which process, the said Elisabeth, and Andrew Heron, younger of Bargally, her husband, compear, and repeat a reduction they have raised of that testament, as being elicit in extremis, when insensible, et contra officium pietatis, he having succeeded to an opulent land-estate, and ought not viis et modis, to intercept their natural legitim. But, during this dependence, being unable to subsist, the said Elisabeth, and her husband, and Agnes, another sister, raise a process of aliment against their elder brother, as a debitum naturale, seeing frater dives fratres vel sorores inopes alere tenetur. Yea some lawyers go farther, that if she be dote destituta tunc eam dotare tenetur.—Alleged, 1mo, Against Elisabeth, that being married, she must be alimented by her own husband, especially considering that she went away without her father's consent; and though her husband has little during his father's lifetime, yet law has prescribed an order of discussing, that his father should be, primo loco, conveened super jure naturæ, to aliment him and his wife; and no law obliges a brother to aliment a sister, except so long as she remains a part of the family; but when she is emancipate, or passed into another family, his obligation ceases.—Answered, Not only the common law, but our municipal customs, have laid this burden on brothers, without respect to marriage or not, but merely if necessitous and poor; as was found 8th January 1663, Lady Otter, No 49. supra—29th June 1676, Rowe, Stair, v. 2. p. 434. (See Presumption.)—5th July 1676, Chiesly, No 54, supra—and 5th July 1677, the Children of Straiton of Lawriston, No 55. supra. And this case is more deplorable, that she has sundry young children; and her father had so far connived at her escape, that he left her 5000 merks. But Sir Alexander, her brother, offered to secure that to her children; debarring the father.——The Lords found the married sister could crave no aliment from her brother. Some thought, if she had been living separate from her husband, there might have been some more pretence. Then Agnes, the unmarried sister, craved an aliment to be modified to her.—Answered, 1mo, You are major and past twenty-one, and so can claim no aliment, but should, by some virtuous course, provide for yourself. 2do, You deserted my house, and suffered your brother-in-law to over-reach you, in disponing all you can claim for your portion to him. 3tio, I am willing to take you back and maintain you honourably, conform to your birth; and, in regard she surmises her return may be uneasy and uncomfortable to her, because of her disobligations, he is content she reside with any of her sisters or aunts, to whom he shall pay such a competent aliment as the Lords shall determine. Replied, She being now sui juris, cannot be confined to a particular place, but has the choice where she thinks fit to live.——The Lords thought the brother's offer reasonable, and therefore allowed her to chuse any of the friends named, for the place of her residence, in which case they would modify an yearly aliment to her, during the dependence of the process betwixt them: But if she refused, and would rather stay where she is, then they would assoilzie her brother from any aliment.

Fol. Dic. v. 1. p. 32. Fount. v. 2. p. 641.